Southeast Farms, Inc. v. Martens Fresh, LLC et al
| Southeast Farms, Inc. |
| Martens Fresh, LLC and Timothy Martens |
| 5:2023cv00100 |
| January 25, 2023 |
| US District Court for the Northern District of New York |
| Lawrence E Kahn |
| Miroslav Lovric |
| Agriculture Acts |
| 07 U.S.C. § 499 Agricultural Commodities Act |
| None |
Docket Report
RSS Track this Docket
This docket was last retrieved on March 10, 2023. A more recent docket listing may be available from PACER.
| Document Text |
|---|
Filing 20
TEXT ORDER: The Court has received a letter motion filed by purported intervenor Ryeco, LLC ("Ryeco"), requesting a conference with the Court and stating that Ryeco and Plaintiff will seek to file an Order to Show Cause. Dkt. No. #19 . The Court notes that Federal Rule of Civil Procedure 24(c) states: "A motion to intervene must be served on the parties as provided by Rule 5. The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought." Fed. R. Civ. P. 24(c). Ryeco has not filed a motion to intervene that complies with the requirements of Local Rule 7.1, a pleading setting out the claim or defense Ryeco is seeking, nor has Ryeco indicated that it served copies of these documents on the parties in this case pursuant to Rule 5. Courts in this Circuit are divided on whether a motion to intervene should be construed as a dispositive motion or a non-dispositive motion. Compare Knight v. Fannie Mae, No. 13-CV-0183, 2014 U.S. Dist. LEXIS 138037, at *5 (N.D.N.Y. Sept. 30, 2014) (stating that the Second Circuit has "treat[ed a] motion to intervene as a dispositive motion" (citing N.Y. Chinese TV Programs, Inc. v. U.E. Enters., Inc., 996 F.2d 21, 2425 (2d Cir. 1993)), with Arista Records, Inc. v. Dalaba Color Copy Ctr., Inc., No. 05-CV-3634, 2007 U.S. Dist. LEXIS 16058, at *4 (E.D.N.Y. Mar. 7, 2007) (stating that a "a motion to intervene [is] not a dispositive motion on the merits"). However, regardless of whether a motion to intervene is a dispositive or a non-dispositive motion, the Court sees no reason for a conference at this time, because Ryeco has not complied with Rule 24(c). See Dietz v. Bouldin, 579 U.S. 40, 47 (2016) ("[D]istrict courts have the inherent authority to manage their dockets and courtrooms with a view toward the efficient and expedient resolution of cases."). Accordingly, the request for a conference is DENIED. If Ryeco seeks to intervene in this case, it must comply with the requirements of Rule 24 and the Local Rules. SO ORDERED by Senior Judge Lawrence E. Kahn on 3/10/2023. (dpk)
|
| Filing 19 Letter Motion from Gregory Brown for Ryeco, LLC requesting L.R. 7.1(a)(2) Conference submitted to Judge Lovric . (Brown, Gregory) |
| Filing 18 NOTICE OF APPEARANCE by Gregory A. Brown on behalf of Ryeco, LLC (Brown, Gregory) |
|
Filing 17
TEXT ORDER: The Clerk of the Court's entry of default was entered against Defendants Martens Fresh, LLC and Timothy Martens on 3/1/2023. (Dkt. No. 16.) Within thirty (30) days of the date of this order, Plaintiff must either (1) move for default judgment pursuant to Fed. R. Civ. P. 55(b) and N.D.N.Y. L.R. 55.2, or (2) file a detailed status report. To the extent that Plaintiff moves for default judgment, Plaintiff must attach a copy of the Clerk's entry of default to the moving papers, serve on Defendants via regular mail, and file certificates of service. The Rule 16 Initial Conference scheduled for 5/10/2023 before Magistrate Judge Miroslav Lovric and the related Rule 16 deadlines are all STAYED without date. SO ORDERED by Magistrate Judge Miroslav Lovric on 3/2/2023. (jdp )
|
| Filing 16 CLERK'S ENTRY OF DEFAULT as to Martens Fresh, LLC and Timothy Martens, approving the #15 Request for Entry of Default. (jmb) |
| Filing 15 REQUEST FOR ENTRY OF DEFAULT as to All Defendants by Southeast Farms, Inc.. (Attachments: #1 Exhibit(s) A - Affidavit in Support, #2 Proposed Default)(De Falco, Steven) |
| Filing 14 CERTIFICATE OF SERVICE by Southeast Farms, Inc. re #10 Order on Motion for TRO,,,,,,,,,,,,,,,,,,, Order on Motion for Preliminary Injunction,,,,,,,,,,,,,,,,,, (De Falco, Steven) |
| Filing 13 NOTICE OF APPEARANCE by Steven M. De Falco on behalf of Southeast Farms, Inc. (De Falco, Steven) |
|
Filing 12
ORDER granting #9 Motion for Limited Admission Pro Hac Vice. Counsel is hereby advised that as of January 16, 2018, the NYND has converted to NextGen. Due to this conversion, you must now register for Pro Hac Vice access through your PACER account. This is the only notice you will receive concerning this requirement. You will not have access to electronically file in this case until your Pro Hac Vice request has been processed through the PACER system. Step-by-step instructions on how to complete this process are available at http://www.nynd.uscourts.gov/attorney-admissions-nextgen. Signed by Magistrate Judge Miroslav Lovric on 2/14/2023. (jdp, )
|
| Filing 11 Supplemental Admission documents re: #9 Motion for Limited Admission Pro Hac Vice,. (Nurenberg, Steven) |
| Notice of Attorney Admission Filing Deficiency re: #9 Motion for Limited Admission Pro Hac Vice of Steven M. DeFalco. Pursuant to LR 83.1(d), the sponsor and/or applicant MUST provide the following required documents: a Certificate of Good Standing that has been issued by a Court; The corrected documents should be electronically filed with the Court by selecting the 'Supplemental Admission documents' event, which is found under the 'Other Documents' menu. Once all requirements under LR 83.1(d) have been met, the motion will be forwarded to the assigned Magistrate Judge for consideration. (tad, ) |
|
Filing 10
MEMORANDUM-DECISION AND ORDER. It is hereby ORDERED, that Plaintiff's motion for a preliminary injunction (Dkt. No. #5 ) is GRANTED; and it is further ORDERED, that Defendants Martens Fresh, LLC, and Timothy Martens and their respective officers, agents, servants, employees, subsidiaries or related companies, financial and banking institutions, and attorneys, together with all other persons in active concert or participation with the aforementioned parties, are hereby enjoined and restrained from dissipating, paying, transferring, encumbering, assigning or selling any assets of Martens Fresh, LLC, subject to the PACA Trust or paying any PACA Trust Asset to any creditor, person, or entity until further order of this Court, full payment to Southeast Farms, Inc. by cashiers check or certified check in an amount equal to $19,440.00, plus attorneys' fees, costs, and interest at 1.5% per month, or upon Southeast Farms, Inc.s agreement; and it is further ORDERED, that the assets subject to this order include all of Martens Fresh, LLC's assets, unless it, Timothy Martens, 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, Martens Fresh, LLC, may sell perishable agricultural commodities or products derived from perishable agricultural commodities for fair compensation, without right of set-off, on the condition that Martens Fresh, LLC accounts for and maintains the proceeds of any sale subject to this Order; and it is furtherORDERED, that Martens Fresh, LLC, shall serve a copy of this Order on all banking or financial institutions with which it conducts business, or any person or entity who may be holding assets for or on behalf of it. Within three (3) days after serving this Order upon these persons or entities, Martens Fresh, LLC, shall file a Certificate of Service with this Court that lists the persons or entities that were served with this Order; and it is further ORDERED, that any banking or financial institutions receiving actual notice of this Order, pursuant to Federal Rule of Civil Procedure 65(d)(2), shall (a) accept checks, Automatic Clearing House (ACH) payments, or wire transfers Martens Fresh, LLC, deposits into any account Martens Fresh, LLC, maintains at that institution and (b) credit each deposit amount to the account balance; and it is furtherORDERED, that no later than three (3) calendar days after receiving notice of this Order, any banking or financial institutions with which Martens Fresh, LLC, conducts business shall provide Southeast Farms, Inc.s counsel with the amount currently on deposit for each account under Martens Fresh, LLC's name; and it is further ORDERED, that for each account under Martens Fresh, LLC's name, the banking or financial institution shall produce copies of bank account statements, showing all debit and credit items, checks, wire confirmations, check registers, and check stubs from June 1, 2022, through the date of the production; and it is further ORDERED, that no later than five (5) calendar days after receiving notice of this Order, Martens Fresh, LLC, shall produce to Southeast Farms, Inc.'s attorney the following documents: bank account statements, showing all debit and credit items, checks, wire confirmations, check registers, and check stubs from June 1, 2022, through and including the date of this Order; a current detailed, aged accounts payable statements; current detailed, aged accounts receivable statements; and list of all assets and equipment owned at any time over the last year from the date of this Order; and it is further ORDERED, that this Order binds the parties to this action, as well as banking and financial institutions and all other persons or entities receiving actual notice of this Order by personal service; and it is furtherORDERED, that the $19,440.00 in PACA Trust Assets belonging to Southeast Farms, Inc., and in Martens Fresh, LLC's possession will serve as Southeast Farms, Inc.'s security for this preliminary injunction pursuant to Federal Rule of Civil Procedure 65(c); and it is further ORDERED, that the Clerk of the Court is directed to serve a copy of this Memorandum-Decision and Order on Plaintiff and on Defendants at the addresses set forth in Plaintiff's affidavits of service (Dkt. Nos. 78) in accordance with the Local Rules. Signed by Senior Judge Lawrence E. Kahn on 2/9/2023. (Copy served via regular mail) (dpk)
|
| Text Minute Entry for proceedings held before Senior Judge Lawrence E. Kahn: Show Cause Hearing held on 2/8/2023 via MS Teams re #4 , #5 Motion for TRO/Preliminary Injunction. Appearances: Steven De Falco, Esq. for Plaintiff. The Court notes that Mr. De Falco's PHV motion is pending and will allow him to appear for Plaintiff for this hearing. The Plaintiff informs the Court that defendants have been properly served as shown at docket #7 and #8 . The Court notes that there has been no appearance by defendants or defendants' counsel and that the motion is unopposed. The Court determines that plaintiff has met the requirements for a preliminary injunction and GRANTS the motion. A written order will be entered. (Court Reporter Lisa Tennyson/CRD: Daniel Krug) [11:01 AM - 11:07 AM] (dpk) |
| Filing 9 MOTION for Limited Admission Pro Hac Vice of Steven M. De Falco Filing fee $100, receipt number ANYNDC-6190178. (Attachments: #1 Declaration of Sponsor, #2 Petition for Admission Under Local Rule 83.1(a), #3 Proposed Order/Judgment, #4 Florida Bar - Certificate of Good Standing, #5 New Attorney E-Filing Registration Form) Motions referred to Miroslav Lovric. (Nurenberg, Steven) |
| Filing 8 AFFIDAVIT of Service for Complaint, Civil Filing Order, Initial Conference Notice, Motion for Temporary Restraining Order et al., Motion for Preliminary Injunction, Memo and Order-Temporary Restraining Order DE 1, DE 3, Text Notice, DE 4, DE 5, DE 6 served on Trish Martens (wife) on 02/01/2023, filed by Southeast Farms, Inc.. (Nurenberg, Steven) |
| Filing 7 AFFIDAVIT of Service for Complaint, Civil Filing Order, Initial Conference Notice, Motion for Temporary Restraining Order et al., Motion for Preliminary Injunction, Memo and Order-Temporary Restraining Order DE 1, DE 3, Text Notice, DE 4, DE 5, DE 6 served on Nancy Dougherty, Business Document Specialist, Corporation Division of the Department of State, of the State of New York on 02/02/2023, filed by Southeast Farms, Inc.. (Nurenberg, Steven) |
| ***Answer deadline set for Timothy Martens to 2/22/2023. (jmb) |
| ***Answer deadline set for Martens Fresh, LLC to 2/23/2023. (jmb) |
|
Filing 6
MEMORANDUM-DECISION AND ORDER. It is hereby ORDERED, that Plaintiff's motion for a temporary restraining order (Dkt. No. #4 ) is GRANTED; and it is furtherORDERED, that this Temporary Restraining Order is entered and is effective on Tuesday, January 31, 2023, at 6:30 PM, for a period of fourteen days; and it is further ORDERED, that a hearing will be held before the Honorable Lawrence E. Kahn, United States District Judge of the Northern District of New York, in Albany, NY, on Wednesday, February 8, 2023 at 11:00 AM, or as soon thereafter as counsel may be heard, to determine whether this Court should enter an order for Preliminary Injunction in accordance with Rule 65(a) of the Federal Rules of Civil Procedure to enforce the statutory trust pursuant to the Perishable Agricultural Commodities Act, 7 U.S.C. 499e(c), by segregating all PACA Trust Assets of Marten Fresh, LLC; and it is further ORDERED, that this Court will conduct the Preliminary Injunction hearing by video conference, with the Clerk sending instructions for the parties and their attorneys to attend; and it is further ORDERED, that pending this hearing and determination of this Temporary Restraining Order, Defendants, Martens Fresh, LLC, and Timothy Martens and their respective officers, agents, servants, employees, subsidiaries or related companies, financial and banking institutions, and attorneys, together with all other persons in active concert or participation with the aforementioned parties, are temporary enjoined and restrained from dissipating, paying, transferring, encumbering, assigning or selling any assets of Martens Fresh, LLC, subject to the PACA Trust or paying any PACA Trust Asset to any creditor, person, or entity until further order of this Court, full payment to Southeast Farms, Inc. by cashiers check or certified check in an amount equal to $19,440.00, plus attorneys fees, costs, and interest at 1.5% per month, or upon Southeast Farms, Inc.s agreement; and it is further ORDERED, that the assets subject to this order include all of Martens Fresh, LLC's assets, unless it, Timothy Martens, 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, Martens Fresh, LLC, may sell perishable agricultural commodities or products derived from perishable agricultural commodities for fair compensation, without right of set-off, on the condition that Martens Fresh, LLC accounts for and maintains the proceeds of any sale subject to this Order; and it is furtherORDERED, that Martens Fresh, LLC, shall serve a copy of this Order on all banking or financial institutions with which it conducts business, or any person or entity who may be holding assets for or on behalf of it. Within three (3) days after serving this Order upon these persons or entities, Martens Fresh, LLC, shall file a Certificate of Service with this Court that lists the persons or entities that were served with this Order; and it is further ORDERED, that any banking or financial institutions receiving actual notice of this Order, pursuant to Federal Rule of Civil Procedure 65(d)(2), shall (a) accept checks, Automatic Clearing House (ACH) payments, or wire transfers Martens Fresh, LLC, deposits into any account Martens Fresh, LLC, maintains at that institution and (b) credit each deposit amount to the account balance; and it is furtherORDERED, that no later than three (3) calendar days after receiving notice of this Order, any banking or financial institutions with which Martens Fresh, LLC, conducts business shall provide Southeast Farms, Inc.'s counsel with the amount currently on deposit for each account under Martens Fresh, LLC's name; and it is further ORDERED, that for each account under Martens Fresh, LLC's name, the banking or financial institution shall produce copies of bank account statements, showing all debit and credit items, checks, wire confirmations, check registers, and check stubs from June 1, 2022, through the date of the production; and it is further ORDERED, that no later than five (5) calendar days after receiving notice of this Order, Martens Fresh, LLC, shall produce to Southeast Farms, Inc.'s attorney the following documents: bank account statements, showing all debit and credit items, checks, wire confirmations, check registers, and check stubs from June 1, 2022, through and including the date of this Order; a current detailed, aged accounts payable statements; current detailed, aged accounts receivable statements; and list of all assets and equipment owned at any time over the last year from the date of this Order; and it is further ORDERED, that if the parties agree to settle the claims alleged in Southeast Farms, Inc.s Complaint in writing within five (5) calendar days after Martens Fresh, LLC, receives notice of this Order, this Court relieves Martens Fresh, LLC, from producing the documents, information, and tangible things specified above; and it is further ORDERED, that this Order binds the parties to this action, as well as banking and financial institutions and all other persons or entities receiving actual notice of this Order by personal service; and it is further ORDERED, that the $19,440.00 in PACA Trust Assets belonging to Southeast Farms, Inc., and in Martens Fresh, LLC's possession will serve as Southeast Farms, Inc.s security for this injunction pursuant to Federal Rule of Civil Procedure 65(c); and it is furtherORDERED, that Southeast Farms, Inc., shall serve Defendants personally with Plaintiff's Motion for TRO (Dkt. No. #4 ) and Motion for Preliminary Injunction (Dkt. No. #5 ) and this Order on or before Thursday, February 2, 2023 at 6:30 PM, pursuant to Federal Rule of Civil Procedure 65(d), as discussed in Doe v. Townes, No. 19-CV-8034, 2020 U.S. Dist. LEXIS 131599, at *69 (S.D.N.Y. July 21, 2020); and it is further ORDERED, that upon two (2) days' notice to the Plaintiff, Defendants may apply to the Court to dissolve or modify this Temporary Restraining Order pursuant to Federal Rule of Civil Procedure 65(b)(4); and it is further ORDERED, that papers in response to Plaintiff's Motion for Preliminary Injunction, if any, shall be filed with the Clerk, and served upon Plaintiff on or before Tuesday, February 7, 2023 at 10:00 AM.Signed by Senior Judge Lawrence E. Kahn on 1/31/2023. (dpk)
|
| Filing 5 MOTION for Preliminary Injunction filed by Southeast Farms, Inc.. Response to Motion due by 2/21/2023. Reply to Response to Motion due by 2/27/2023 (Nurenberg, Steven) |
| Filing 4 Emergency MOTION for Temporary Restraining Order -Ex Parte by Southeast Farms, Inc.. (Attachments: #1 Copy of Complaint (Pursuant to LR 65.1), #2 Memorandum of Law, #3 Declaration of Plaintiff in Support of Motion, #4 Certification of Counsel, #5 Proposed Order to Show Cause - Temporary Restraining Order)(Nurenberg, Steven) |
| TEXT NOTICE: The Initial Conference scheduled for 5/10/2023 at 11:00 AM will be held via Microsoft Teams Telephone Conference. The Courtroom Deputy will send a Teams Link to the parties to participate. (jdp ) |
| Filing 3 G.O. 25 FILING ORDER ISSUED: Initial Conference set for 5/10/2023 at 11:00 AM by Telephone Conference before Magistrate Judge Miroslav Lovric. Civil Case Management Plan must be filed and Mandatory Disclosures are to be exchanged by the parties on or before 5/3/2023. (Pursuant to Local Rule 26.2, mandatory disclosures are to be exchanged among the parties but are NOT to be filed with the Court.) (hmr) |
| Filing 2 Summonses Issued as to Timothy Martens, Martens Fresh, LLC. (Attachments: #1 Summons Issued for Timothy Martens)(hmr) |
| Filing 1 COMPLAINT against Timothy Martens, Martens Fresh, LLC (Filing fee $402 receipt number ANYNDC-6174158) filed by Southeast Farms, Inc. (Attachments: #1 Civil Cover Sheet)(hmr) |
Access additional case information on PACER
Use the links below to access additional information about this case on the US Court's PACER system. A subscription to PACER is required.
Access this case on the New York Northern District Court's Electronic Court Filings (ECF) System
- Search for Party Aliases
- Associated Cases
- Attorneys
- Case File Location
- Case Summary
- Docket Report
- History/Documents
- Parties
- Related Transactions
- Check Status
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
