Filed: Feb. 10, 2016
Latest Update: Feb. 10, 2016
Summary: AMENDED STIPULATION AND [PROPOSED] ORDER GRANTING PLAINTIFF'S RENEWED EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR PRELIMINARY INJUNCTION **AS MODIFIED BY THE COURT AT 9(g)** YVONNE GONZALEZ ROGERS , District Judge . IT IS HEREBY STIPULATED BY AND BETWEEN the parties through their counsel of record, as follows: 1. On January 27, 2016, Plaintiff DS-CONCEPT TRADE INVEST, LLC ("DSC" or "Plaintiff") filed a Complaint for Breach of Contract; Breach of the Implied Co
Summary: AMENDED STIPULATION AND [PROPOSED] ORDER GRANTING PLAINTIFF'S RENEWED EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR PRELIMINARY INJUNCTION **AS MODIFIED BY THE COURT AT 9(g)** YVONNE GONZALEZ ROGERS , District Judge . IT IS HEREBY STIPULATED BY AND BETWEEN the parties through their counsel of record, as follows: 1. On January 27, 2016, Plaintiff DS-CONCEPT TRADE INVEST, LLC ("DSC" or "Plaintiff") filed a Complaint for Breach of Contract; Breach of the Implied Cov..
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AMENDED STIPULATION AND [PROPOSED] ORDER GRANTING PLAINTIFF'S RENEWED EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR PRELIMINARY INJUNCTION
**AS MODIFIED BY THE COURT AT ¶ 9(g)**
YVONNE GONZALEZ ROGERS, District Judge.
IT IS HEREBY STIPULATED BY AND BETWEEN the parties through their counsel of record, as follows:
1. On January 27, 2016, Plaintiff DS-CONCEPT TRADE INVEST, LLC ("DSC" or "Plaintiff") filed a Complaint for Breach of Contract; Breach of the Implied Covenant of Good Faith and Fair Dealing; Conversion; and Declaratory Relief (Dkt. No. 1).
2. On the same date, DSC filed an Ex Parte Application for Temporary Restraining Order and Motion for Preliminary Injunction and Order Permitting Expedited Discovery. (Dkt.No.6).
3. On February 1, 2016, the Court issued an Order Denying Without Prejudice Ex Parte Application For Temporary Restraining Order (Dkt.No.11) indicating, in pertinent part:
"The Court finds that plaintiff failed to comply with the requirements of Federal Rule of Civil Procedure (FRCP) 65(b)(1) as well as the Civil Local Rule 65-1 to allow this Court to issue the TRO without notice to adverse parties. As set forth in the FRCP itself, the Court may only issue a TRO without notice to adverse parties if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.
Fed.R.Civ.P. 65(b)(1) (emphasis supplied). Plaintiff failed to show it met either of the above requirements or those of the Local Rule. Consequently, the Court DENIES plaintiff's ex parte application for TRO WITHOUT PREJUDICE to refiling in accordance with the cited rules."
4. On February 4, 2016, DSC's counsel provided gave notice (by telephone) and supplied copies (via email) of the Complaint and the Ex Parte Application, as well as the Order and all relevant filings to date, as well as an indication that the application would be renewed.
5. On February 4, 2016, DSC filed its renewed ex parte application. (Dkt Nos. 12, 13).
6. On February 5, 2016, DSC's counsel sent copies of the renewed ex parte application to Defendants' counsel.
7. On February 5, 2016, Defendants' counsel contacted DSC's counsel via telephone and advised that Defendants would stipulate to the requested relief as modified herein, including a preliminary injunction through trial, without the posting of a bond, which also negated any need for expedited discovery.
8. Upon notice of this agreement, DSC's counsel promptly notified the Judge's chambers to alert them that a stipulation and proposed order would be forthcoming.
9. The agreed upon Order is as follows:
Defendants GOURMET FOOD IMPORTS, LLC and GORMET FOOD IMPORTS LTD, and all those acting in concert with them, including but not limited to the directors, officers, employees, agents, affiliates, business partners, are hereby enjoined and restrained from selling, transferring, hypothecating or assigning any part of the inventory of cheese described in Exhibit "A" attached hereto (the "Inventory") to any party in the ordinary course of business, or otherwise, or move any part of the Inventory, without the prior authorization and express written consent of Plaintiff DS-CONCEPT TRADE INVEST, LLC. Any attempt to do so or any such action shall, in and of itself, constitute an Event of Default under the Account Receivable Purchase Agreement with Defendant Gormet Food Imports LTD (see Complaint, Ex. "A") and the Guaranty executed by Defendant Gourmet Food Imports, LLC (see Complaint, Ex. "B"), with Plaintiff authorized to pursue any remedy available to it under law or equity, including further injunctive relief and/or contempt. a. Upon entry of this Order, a copy shall be delivered to personnel in charge of the
following storage locations: (a) Growers' Refrigeration Company; 2050 Galvez Ave; San Francisco, CA 94124; Phone: (415) 647-8383; Fax: (415) 647-1209; and (b) United Cold Storage; 1600 Donner Avenue; San Francisco, CA 94124; Phone: (415) 822-8445; Fax: (415) 822-8456 (collectively "the storage locations").
b. The storage locations are advised that, pursuant to this Order, Plaintiff has the right and authority to act on Defendants' behalf to communicate with the storage locations regarding the existence, content, and storage of the Inventory identified in Ex "A" and that the Inventory may not be sold, transferred, assigned, transported, disposed of or otherwise leave the storage locations without Plaintiff's prior written consent.
c. GOURMET FOOD IMPORTS, LLC and GORMET FOOD IMPORTS LTD (collectively "Defendants") may continue to attempt to market and sell the INVENTORY. However, any sales would require DSC's prior written approval before they were finalized.
d. Discovery shall proceed pursuant to normal timeframes.
e. There shall be an accounting ordered in favor of Plaintiff and against Defendants for any and all prior sales, revenue, and profits received regarding the Inventory.
f. Pursuant to the parties' agreements (See Complaint, Ex. "A," Par.19), no bond is required to be posted for the issuance, entry and enforcement of this Order.
g. This Order shall remain in full force and effect until judgment is entered in this case.
IT IS SO STIPULATED.
ATTESTATION
In accordance with Civ.L.R. 5-1(i)(3), I attest that concurrence in the filing of this document has been obtained from the other signatory.
PROPOSED ORDER
PURSUANT TO STIPULATION, IT IS SO ORDERED.
EXHIBIT A
