Alex Kontos Fruit Co., Inc. v. Doug Specialties LLC et al
| Alex Kontos Fruit Co., Inc |
| Doug Specialties LLC and Douglas J. Habe |
| 0:2023cv62431 |
| December 29, 2023 |
| US District Court for the Southern District of Florida |
| Rodolfo A Ruiz |
| Agriculture Acts |
| 07 U.S.C. § 0499 Agricultural Commodities Act |
| None |
Docket Report
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This docket was last retrieved on February 12, 2024. A more recent docket listing may be available from PACER.
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Filing 25
ORDER Closing and Dismissing Case (Without Prejudice) . Signed by Judge Rodolfo A. Ruiz, II on 2/12/2024. See attached document for full details. (kgs)
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| Filing 24 NOTICE of Voluntary Dismissal Without Prejudice by Alex Kontos Fruit Co., Inc (Ohl, Gregory) |
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Filing 23
PAPERLESS ORDER striking #22 Plaintiff's Notice of Voluntary Dismissal ("Notice"). Plaintiff's Notice indicates that Plaintiff seeks "voluntary dismissal of this action with prejudice, of the above styled action and advises the Court that the parties have resolved and otherwise settled this action with each other bearing their own fees and costs. Accordingly, the Court may immediately dismiss the above styled civil action against all defendants without prejudice." Notice at 1 (emphasis added). It is thus unclear to the Court whether the dismissal is intended to be with prejudice or without prejudice. Plaintiff is accordingly instructed to refile this Notice before 5:00 P.M. on February 12, 2024. The Notice shall unequivocally indicate whether the voluntary dismissal is with prejudice or without prejudice. Signed by Judge Rodolfo A. Ruiz, II on 2/12/2024. (kgs)
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| Filing 22 (STRICKEN PER DE#23) NOTICE of Voluntary Dismissal by Alex Kontos Fruit Co., Inc (Ohl, Gregory) Modified Text on 2/12/2024 (cds). |
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Filing 21
ORDER TO SHOW CAUSE. Show Cause Response due by 2/9/2024. Signed by Judge Rodolfo A. Ruiz, II on 2/2/2024. See attached document for full details. (kgs)
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Filing 20
PAPERLESS ORDER REQUIRING COMBINED RESPONSES. Sua sponte review of the record indicates that Defendant Doug Specialties, LLC was served on January 8, 2024. See Proof of Service, #18 . Defendant Douglas J. Habe was served on January 10, 2024. See Proof of Service, #19 . Accordingly, to better manage the orderly progress of this case, Defendants shall submit a single combined response or separate answers within the time allowed for the last-served Defendant to respond under Fed. R. Civ. P. 12. Signed by Judge Rodolfo A. Ruiz, II on 1/12/2024. (kgs)
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| Filing 19 SUMMONS (Affidavit) Returned Executed on #1 Complaint, with a 21 day response/answer filing deadline pursuant to Fed. R. Civ. P. 12 by Alex Kontos Fruit Co., Inc. Douglas J. Habe served on 1/10/2024, response/answer due 1/31/2024. (Ohl, Gregory) |
| Filing 18 SUMMONS (Affidavit) Returned Executed on #1 Complaint, with a 21 day response/answer filing deadline pursuant to Fed. R. Civ. P. 12 by Alex Kontos Fruit Co., Inc. Doug Specialties LLC served on 1/8/2024, response/answer due 1/29/2024. (Ohl, Gregory) |
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Filing 17
PAPERLESS ORDER granting #15 and #16 Motions to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for attorneys Jason R. Klinowski and Vernon Walker Wells. Signed by Judge Rodolfo A. Ruiz, II on 1/4/2024. (kgs)
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| Filing 16 Corrected MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Vernon Walker Wells. Filing Fee $ 200.00 Amended/Corrected Motion to Appear Pro Hac Vice Filed - Filing Fees Previously Paid. See #10 Motion to Appear Pro Hac Vice, by Alex Kontos Fruit Co., Inc. Responses due by 1/17/2024 (Ohl, Gregory) |
| Filing 15 Corrected MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Jason R. Klinowski. Filing Fee $ 200.00 Amended/Corrected Motion to Appear Pro Hac Vice Filed - Filing Fees Previously Paid. See #9 Motion to Appear Pro Hac Vice, by Alex Kontos Fruit Co., Inc. Responses due by 1/17/2024 (Ohl, Gregory) |
| Filing 14 NOTICE of Striking #10 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Vernon Walker Wells. Filing Fee $ 200.00 Receipt # AFLSDC-17181104 filed by Alex Kontos Fruit Co., Inc by Alex Kontos Fruit Co., Inc (Ohl, Gregory) |
| Filing 13 NOTICE of Striking #9 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Jason R. Klinowski. Filing Fee $ 200.00 Receipt # AFLSDC-17181079 filed by Alex Kontos Fruit Co., Inc by Alex Kontos Fruit Co., Inc (Ohl, Gregory) |
| Filing 12 Clerk's Notice to Filer re #10 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Vernon Walker Wells. Filing Fee $ 200.00 Receipt # AFLSDC-17181104. Login/Signature Block Violation; CORRECTIVE ACTION REQUIRED WITHIN 3 DAYS - The name of attorney e-filing this document via their CM/ECF login does not match the name of attorney on the signature block of the document. The name used for login must match typed name on signature block of the document. This filing is a violation of Section 3J(1) of CM/ECF Admin Procedures and LR 5.1(b). Filer must File a Notice of Striking, then refile document pursuant to CM/ECF Admin Procedures and Local Rules. (drz) |
| Filing 11 Clerk's Notice to Filer re #9 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Jason R. Klinowski. Filing Fee $ 200.00 Receipt # AFLSDC-17181079. Login/Signature Block Violation; CORRECTIVE ACTION REQUIRED WITHIN 3 DAYS - The name of attorney e-filing this document via their CM/ECF login does not match the name of attorney on the signature block of the document. The name used for login must match typed name on signature block of the document. This filing is a violation of Section 3J(1) of CM/ECF Admin Procedures and LR 5.1(b). Filer must File a Notice of Striking, then refile document pursuant to CM/ECF Admin Procedures and Local Rules. (drz) |
| Filing 10 Stricken per DE #14 - MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Vernon Walker Wells. Filing Fee $ 200.00 Receipt # AFLSDC-17181104 by Alex Kontos Fruit Co., Inc. Responses due by 1/16/2024 (Ohl, Gregory) Modified text on 1/4/2024 (drz). |
| Filing 9 Stricken per DE #13 - MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Jason R. Klinowski. Filing Fee $ 200.00 Receipt # AFLSDC-17181079 by Alex Kontos Fruit Co., Inc. Responses due by 1/16/2024 (Ohl, Gregory) Modified text on 1/4/2024 (drz). |
| Filing 8 Bar Letter re: Admissions sent to attorneys Jason R. Klinowski and V. Walker Wells, mailing date January 2, 2024. (cw) |
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Filing 7
PAPERLESS ORDER denying without prejudice #5 Plaintiff's Motion for Temporary Restraining Order ("TRO Motion") and #6 Plaintiff's Motion for Preliminary Injunction ("PI Motion"). The Motions are denied without prejudice for the following reasons. First, concerning the TRO Motion, Plaintiff has not adequately alleged nor provided evidence of PACA trust-asset dissipation sufficient to justify injunctive relief, let alone ex parte relief. The Eleventh Circuit has explained that the dissipation of trust assets in the PACA context can constitute irreparable harm justifying injunctive relief, and in certain circumstances, said relief can be granted on an ex parte basis. See Frio Ice, S.A. v. Sunfruit, Inc., 918 F.2d 154, 159 (11th Cir. 1990) ("[O]nce the trust is dissipated it is almost impossible for a beneficiary to obtain recover[y]."). Here, however, Plaintiff has presented no evidence of actual asset dissipation. Rather, Plaintiff's TRO Motion, PI Motion, and their accompanying exhibits advance only conclusory allegations that Defendants' purported failure to pay constitutes the dissipation of PACA trust funds and warrants ex parte TRO relief. See, e.g., [5-1] at 11; [5-3] at 8-9. Accordingly, Plaintiff's TRO is denied without prejudice and with leave to amend the allegations and provide supplemental evidence concerning Defendants' actual dissipation of assets, if any. See, e.g., G.W. Palmer & Co. v. Fla. Fresh Produce Corp., No. 217-cv-657-FtM-29MRM, 2017 WL 6041918, at *2 (M.D. Fla. Dec. 6, 2017) (denying TRO request to enforce a statutory trust created by PACA because "[p]laintiff has presented no evidence of asset dissipation, apart from the mere fact of nonpayment."); All Am. Farms, Inc. v. Lanes Consulting Firm, LLC, No. 14-80730, 2014 WL 11512218, at *2 (S.D. Fla. June 3, 2014) (noting that "without specific evidence of an imminent threat to the trust assets, the Court cannot find that [plaintiff] will sustain immediate and irreparable harm before a preliminary-injunction hearing can be held" and thus denying plaintiff's ex parte motion for TRO); Dimare Ruskin, Inc. v. Del Campo Fresh, Inc., No. 810-cv-1332-T-23AEP, 2010 WL 2465158, at *2 (M.D. Fla. June 15, 2010) (holding that "plaintiffs' conclusory allegation that the defendants [would] further dissipate the trust assets fail[ed] to justify enjoining the defendants before the benefit of a hearing" on plaintiffs' PACA claims); see also Tropical Fruit Trading, Inc. v. AgroFarms, LLC, No. 16-21735, 2016 WL 4376747, at *3 (S.D. Fla. Aug. 17, 2016) ("In the PACA context, a plaintiff's failure to submit any evidence of irreparable harm other than a defendant's nonpayment can be sufficient grounds on its own to deny a preliminary injunction."); Farmers Potato Distrib., LLC v. G & K Citrus, LLC, No. 19-24318, 2019 WL 8273560, at *12 (S.D. Fla. Nov. 26, 2019), report and recommendation adopted sub nom. Farmers Potato Distrib., LLC v. G&K Citrus, LLC, 2019 WL 8273603 (S.D. Fla. Dec. 3, 2019) (rejecting plaintiff's ex parte TRO request, holding hearing on plaintiff's TRO motion to restrain PACA Trust Assets, and granting TRO only after defendant failed to appear at hearing and court determined plaintiff had adequately alleged actual dissipation of PACA Trust Assets by showing several additional indicators of actual asset dissipation in addition to defendant's mere nonpayment of past-due debts owed to plaintiff). Second, the Motions appear to request duplicative, overlapping relief. For example, [ECF No. 5] is styled as a Motion for a TRO, but the accompanying memorandum of law is briefed as a Motion for a Preliminary Injunction, [ECF No. 5-1]. Moreover, [ECF No. 5-1] also appears to be identical to the memorandum of law attached to Plaintiff's Motion for Preliminary Injunction, [ECF No. 6-1]. Another issue is that [ECF No. 6] is styled as a "Motion for Preliminary Injunction and to Consolidate Hearing with Trial on the Merits," but the Motion and memorandum of law are silent as to consolidating a hearing with a trial on the merits, as the Motion's title suggests. And while Plaintiff has properly attached the required certificate of counsel and verified affidavit per the requirements of Fed. R. Civ. P. 65(b)(1) to both Motions, there is no corresponding briefing that justifies the ex parte TRO relief Plaintiff seeks here. Accordingly, any renewed TRO or PI Motion shall be filed as a SINGLE consolidated Motion requesting both forms of relief and including integrated briefing justifying each form of relief requested. Further, per S.D. Fla L.R. 7.1(a)(1), Plaintiff is directed to incorporate any future motions and memorandums of law into a single motion rather than filing a separate memorandum of law as an attachment or exhibit. Finally, per S.D. Fla L.R. 7.1(a)(2), any future TRO or PI motions filed with the Court shall be accompanied by an updated, final proposed order in Word format emailed at the time of filing to ruiz@flsd.uscourts.gov. Signed by Judge Rodolfo A. Ruiz, II on 12/31/2023. (kgs)
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| Filing 6 MOTION for Preliminary Injunction by Alex Kontos Fruit Co., Inc. (Attachments: #1 Memorandum Memo of Law in Support of Preliminary Injunction, #2 Affidavit Declaration of Jerry Williams in Support of Injunctive Relief, #3 Exhibit Alex Kontos Fruit Co, Inc. PACA License, #4 Exhibit Commodities Covered by PACA, #5 Exhibit Delivery Invoices from Kontos, #6 Exhibit Doug Specialties LLC PACA License, #7 Exhibit Chart and Invoices, #8 Exhibit Emails, #9 Exhibit Kontos Tomatoes on Doug Specialties FB Page)(Ohl, Gregory) |
| Filing 5 MOTION for Temporary Restraining Order by Alex Kontos Fruit Co., Inc. Responses due by 1/12/2024 (Attachments: #1 Memorandum Memo of Law in Support of Application for TRO, #2 Certification Attorney Certificate of No Notice Under Rule 65, #3 Affidavit Declaration of Jerry Williams in Support of Injunctive Relief, #4 Exhibit Alex Kontos Fruit Co, Inc. PACA License, #5 Exhibit Commodities Covered by PACA, #6 Exhibit Delivery Invoices from Kontos, #7 Exhibit Doug Specialties LLC PACA License, #8 Exhibit Chart and Invoices, #9 Exhibit Emails, #10 Exhibit Kontos Tomatoes on Doug Specialties FB Page, #11 Text of Proposed Order Proposed TRO)(Ohl, Gregory) |
| Filing 4 Summons Issued as to Doug Specialties LLC, and Douglas J. Habe. (wce) |
| Filing 3 Initial Disclosure(s) of Rule 7.1 Statement Disclosures by Alex Kontos Fruit Co., Inc (Ohl, Gregory) |
| Filing 2 Clerks Notice of Judge Assignment to Judge Rodolfo A. Ruiz, II. Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Alicia O. Valle is available to handle any or all proceedings in this case. If agreed, parties should complete and file the Consent form found on our website. It is not necessary to file a document indicating lack of consent. (wce) |
| Filing 1 COMPLAINT against All Defendants. Filing fees $ 405.00 receipt number AFLSDC-17177454, filed by Alex Kontos Fruit Company, Inc.. (Attachments: #1 Civil Cover Sheet Civil Cover Sheet Doug Specialties LLC, #2 Summon(s) Summons Doug Specialties LLC, #3 Summon(s) Summons Douglas Habe, #4 Exhibit Doug Specialties LLC PACA License, #5 Exhibit Doug Specialties LLC 2023 FL Annual Report, #6 Exhibit Chart and Invoices)(Ohl, Gregory) |
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