Opinion
Civil Action No: 1:11-cv-1660 AWI DLB
10-07-2011
WILLIAM CONSALO & SONS FARMS, INC. Plaintiff v. MARKET 52, et al Defendants
James H. Wilkins (CA Bar No. 116364) Varduhi Rose Petrosyan (CA Bar No. 215740) Wilkins, Drolshagen & Czeshinski, LLP Louis W. Diess, III McCarron & Diess Attorneys for Plaintiff
James H. Wilkins (CA Bar No. 116364)
Varduhi Rose Petrosyan (CA Bar No. 215740)
Wilkins, Drolshagen & Czeshinski, LLP
Louis W. Diess, III
McCarron & Diess
Attorneys for Plaintiff
STIPULATION AND ORDER
Plaintiff, William Consalo & Sons Farms, Inc., by and through its undersigned attorneys, and Defendants, Market 52, Jerald Daniel Downs and Lyndsey C. Downs, hereby stipulate and agree to the terms of this Stipulation and Order, and the Court hereby approves this Stipulation and enters the Order thereon.
1. Plaintiff, William Consalo & Sons Farms, Inc., is a trust creditor under the provisions of the Perishable Agricultural Commodities Act, 7 U.S.C. §499e(c), against Defendants, Market 52, Jerald Daniel Downs and Lyndsey C. Downs, jointly and severally, and on a debt in the principal amount of $192,183.90, plus attorney's fees in the amount of $7,072.50, and interest at the rate of 18% per annum or $4,957.04, for a total amount of $204,213.44.
2. Defendants Market 52, Jerald Daniel Downs and Lyndsey C. Downs, shall pay to Plaintiff William Consalo & Sons Farms, Inc. the sum of $204,213.44 as follows: $30,000.00 on or before October 7, 2011, and the remaining balance in separate, equal weekly installments of $15,000.00 commencing on or before October 14, 2011 and continuing each Friday thereafter until the $204,213.44 is paid in full or defendants receive additional funding, either directly or indirectly, from any third party source, including Central Valley Funding and its affiliates, at which time the full amount remaining due and owing to plaintiff shall be paid. All payments shall be by certified check, cashier's check, money order, or wire transfer, payable to William Consalo & Sons Farms, Inc., and delivered to William Consalo & Sons Farms, Inc., 1269 North Main Road, Vineland, New Jersey 08360 on or by the date payment is due.
3. To secure the payment of said amount, defendants Market 52, Jerald Daniel Downs and Lyndsey C. Downs, have executed a Joint Motion for Entry of Judgment and Preliminary Injunction, which will be held in escrow by the attorneys for Plaintiff and which shall not be filed unless there is a default as set forth below. (A copy of the Joint Motion for Entry of Judgment and Preliminary Injunction and Proposed Judgment and Preliminary Injunction are attached for informational purposes only and should not be entered by the Court at this time.)
4. If there is a default in the payment of any of the payments referenced in paragraph 2, including the failure to make full payment upon receipt of additional funding, that remains uncured for a period of three business days, the aforesaid sum above mentioned in paragraphs 1 and 2 above, or any balance that may appear to be unpaid thereon, together with all costs and reasonable attorney's fees to collect the sum due (including those incurred to determine additional costs and fees) (hereafter "the Debt"), less any payments made pursuant to this Stipulation, shall, at the option of the Plaintiff, thereupon become immediately due and payable, and Plaintiff, upon the filing of an affidavit as to such default by Plaintiffs attorney with the Court with a copy thereof to Defendants, shall be entitled to file the previously executed Joint Motion for Entry of Judgment and obtain a Judgment against defendants under the trust provisions of the Perishable Agricultural Commodities Act, 7 U.S.C. §499e(c), for the full amount of the debt.
5. Nothing herein, including the installment nature of the payments being made hereunder, shall be deemed, interpreted or otherwise construed as an extension of credit by the Plaintiff to Defendants, or as a waiver of the Plaintiffs rights under the statutory trust provision of the Perishable Agricultural Commodities Act ("PACA"), 7 U.S.C. §499e(c) to pursue third parties for the recovery of PACA trust assets. Plaintiffs rights under this Stipulation and Order are in addition to its rights under said trust provision.
6. The Court shall retain jurisdiction over the parties during the pendency of the application of this Order.
7. This Order supersedes the Order Granting Plaintiffs Application for Temporary Restraining Order which was granted on October 4, 2011. The Order Granting Plaintiffs Application for Temporary Restraining Order is hereby dissolved.
IT IS SO STIPULATED
MARKET 52
Jerald Daniel Downs, President
McCARRON & DIES S
Louis W. Diess, III
4530 Wisconsin Ave., N.W., Suite 301
Washington, DC 20016
(202) 364-0400
and
JERALD DANIEL DOWNS
Jerald Daniel Downs, Individually
WILKINS, DROLSHAGEN &
CZESHINSKI, LLP
James H. Wilkins (CA Bar No. 116364)
Varduhi Rose Petrosyan (CA Bar No. 215740)
Attorneys for Plaintiff
LYNDSEY C. DOWNS
Lyndsey C. Downs, Individually
ORDER
IT IS SO ORDERED.
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CHIEF UNITED STATES DISTRICT JUDGE