D'Arrigo Bros Co. of New York, Inc. v. Gramercy Produce Inc.
- Ho
- 1:24-cv-04841
- U.S. District Court · Southern District of New York
- 3
D’Arrigo Bros v. Gramercy Produce: Judge Ho denied D’Arrigo’s request for an emergency temporary restraining order over alleged PACA trust assets.
D’Arrigo’s emergency request for a temporary restraining order was denied. The defendants received a schedule to oppose the separate preliminary-injunction motion, and D’Arrigo had service and notice obligations.
What happened
In D’Arrigo Bros Co. of New York, Inc. v. Gramercy Produce Inc., D’Arrigo asked the Southern District of New York for an emergency order without notifying the defendants. The request concerned assets that D’Arrigo said had to be held for its benefit under the Perishable Agricultural Commodities Act.
The court recognized that losing those trust assets could cause harm that money might not fix. But the court found that D’Arrigo had not clearly shown an immediate danger that the assets would be dissipated. The court therefore found that D’Arrigo had not met the standard for emergency relief.
Judge Dale E. Ho denied the motion for a temporary restraining order. The court did not decide the separately filed preliminary-injunction motion; defendants were given until July 12, 2024, to respond, and D’Arrigo was given until July 19, 2024, to reply if it chose. D’Arrigo also had to notify counsel for parties who had not appeared and file proof of notice by July 1, 2024.
The detailed version
- D'Arrigo Bros Co. of New York, Inc. v. Gramercy Produce Inc. · No. 1:24-cv-04841
- Ho
- June 26, 2024
Background
D’Arrigo brought the action alleging a violation of the Perishable Agricultural Commodities Act, a federal statute known as PACA. On June 26, 2024, D’Arrigo filed an emergency motion for an ex parte temporary restraining order, meaning an emergency order requested without advance notice to the opposing parties.
D’Arrigo argued that notice would give the defendants an opportunity to dissipate PACA trust assets that were required by statute to be held for D’Arrigo’s benefit. D’Arrigo cited decisions stating that once such assets are dissipated, recovery can be nearly impossible.
Legal standard and analysis
A temporary restraining order is an extraordinary form of emergency relief. The moving party must show irreparable harm—harm that is actual and imminent, rather than speculative, and cannot be remedied by money damages—and either a likelihood of success on the merits or sufficiently serious legal questions combined with a balance of hardships favoring emergency relief.
The court agreed that dissipation of PACA trust assets can constitute irreparable harm. The court explained that PACA’s trust provisions were intended to prevent dealers from paying secured creditors with proceeds from perishable agricultural commodities and leaving agricultural suppliers without a means to recover payment. But after reviewing D’Arrigo’s motion, the court found that D’Arrigo had not clearly shown an imminent danger that the trust assets would be dissipated.
Ruling and next steps
The court denied D’Arrigo’s motion for a temporary restraining order. The order did not rule on D’Arrigo’s separately filed motion for a preliminary injunction. Defendants were ordered to file any opposition, no longer than fifteen pages, by July 12, 2024. D’Arrigo could file a reply, also no longer than fifteen pages, by July 19, 2024.
D’Arrigo was ordered to serve the order on counsel for all parties who had not appeared and to file proof of that notice by July 1, 2024. If counsel for a party was unknown, counsel receiving the order had to send it and the court’s individual practices to that party personally. The Clerk was directed to close the docket entry for the temporary-restraining-order motion.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.