United States District Court, N.D. Ohio, Eastern Division
TOPASHAW FARMS PROCESSING, LLC d/b/a TOPASHAW FARMS PACKING, MS, et al., Plaintiff,
FOREST CITY-WEINGART PRODUCE CO., INC., ANDREW J. WEINGART, and JAMES B. WEINGART, Defendants.
MEMORANDUM OPINION & ORDER
Jonathan D. Greenberg United States Magistrate Judge.
matter is before the Court on consent of the parties,
pursuant to 28 U.S.C. § 636(c) and Local Rule 73.1(a).
Currently pending is Farm-Wey Produce, Inc.'s Motion for
Leave to Intervene and File PACA Proof of Claim Out of Time.
(Doc. No. 93.) For the following reasons, Farm-Wey
Produce's Motion is GRANTED.
March 16, 2017, Plaintiff Topashaw Farms Processing, LLC
(hereinafter “Topashaw”) filed this action
against Defendants Forest-City Weingart Produce Co., Inc.,
Andrew Weingart, and James Weingart. (Doc. No. 1). Among
other things, the Complaint asserts various claims under the
Perishable Agricultural Commodities Act (“PACA”),
7 U.S.C. §§ 499a - 499t, based on Defendant
Forest-City's alleged failure to pay Topashaw for
approximately $200, 000 in produce Topashaw sold to
Forest-City between September 2014 and January 2017.
(Id.) In particular, Topashaw seeks to enforce
payment from Defendant Forest-City from the statutory trust
imposed under PACA.
September 21, 2017, the Court entered its final approval
(Doc. No. 35) of a Consent Injunction and Agreed Order
(hereinafter “Agreed Order”) establishing a PACA
trust fund and claims procedure in order to “provide a
procedural framework to review, qualify, verify, and satisfy
any and all claims against the PACA Trust Assets, to maximize
the recovery for all unpaid beneficiaries of the PACA trust
and to ensure the rights of all potential PACA claimants are
efficiently addressed in a single proceeding.” (Doc.
No. 22 at 3.) In particular, the Agreed Order set deadlines
for creditors to file PACA Proofs of Claim, Complaints in
Intervention, Objections to Claims, Responses to Objections,
etc. (Doc. No. 22.)
particular relevance herein, the Agreed Order provides a
deadline of October 11, 2017 for creditors to file PACA
Proofs of Claim and Complaints in Intervention. (Id. at
¶ 24.) The Agreed Order expressly states as follows:
27. ANY SUPPLIER OR CREDITOR WHO FAILS TO TIMELY FILE A PACA
PROOF OF CLAIM WITH THE COURT SHALL BE FOREVER BARRED FROM
ASSERTING ANY CLAIM UNDER PACA AGAINST THE COMPANY, THE PACA
TRUST ASSETS, OTHER PACA CLAIMANTS, THE DEFENDANTS, OR ANY
OTHER THIRD PARTY.
(Doc. No. 22 at ¶ 27.)
number of creditors filed Complaints in Intervention and/or
PACA Proofs of Claim prior to or on the October 11, 2017
deadline. (Doc. Nos. 17, 29, 41, 42, 44, 46, 47, 48, 49, 50,
51, 53, 54, 55, 56, 57, 58, 61, 64, 65, 66, 68, 69, 70, 71,
72, 73, 74, 75, 76, 77.) Objections to PACA Claims were due
by November 13, 2017. (Doc. No. 22 at ¶ 24.) The record
reflects various Objections were filed by both Topashaw and
Defendants. (Doc. Nos. 81, 82, 83, 84, 85, 86, 87, 88, 89,
90, 91.) Under the Agreed Order, Responses to Claims
Objections are due no later than December 13, 2017. (Doc. No.
22 at ¶ 24.)
November 27, 2017,  Farm Wey-Produce filed a Motion for Leave
to Intervene and File PACA Proof of Claim Out of Time. (Doc.
No. 93.) Defendants filed a Brief in Opposition on December
5, 2017, to which Farm-Wey replied. (Doc. Nos. 94, 97.)
motion, Farm-Wey seeks leave to intervene as a matter of
right under Fed. R. Civ.
24(a). That Rule provides:
On timely motion, the court must permit anyone to intervene
who ... claims an interest relating to the property or
transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical
matter impair or impede the movant's ability to protect
its interest, unless existing parties adequately represent
Fed. R. Civ. P. 24(a)(2). The Sixth Circuit has interpreted
the above Rule to require an applicant to show the following:
(1) the application was timely filed; (2) the applicant has a
substantial legal interest in the case; (3) the
applicant's ability to protect that interest will be
impaired in the absence of intervention; and (4) the existing
parties will not adequately represent the applicant's
interest. Blount-Hill v. Zelman, 636 F.3d 278, 283
(6th Cir. 2011). See also Atlas Noble, LLC v. Krizman
Enterprises, 692 Fed.Appx. 256, 268 (6th Cir. May 23,
2017); Davis v. Lifetime Capital, Inc., 560
Fed.Appx. 477, 489 (6th Cir. March 18, 2014). “Each of
these elements is mandatory, and therefore failure to satisfy
any one of the elements will defeat intervention under the
Rule.” Blount-Hill, 636 F.3d at 283. See
also Grubbs v. Norris, 870 F.2d 343, 345 (6th
Cir. 1989) (stating that “failure to meet [any] one of
the [four] criteria will require that the motion to intervene
be denied.”); Davis, 560 Fed.Appx. at 489.
considering whether a proposed intervenor satisfies the above
four-part test, “the factual circumstances considered
under Rule 24(a) should be ‘broadly construed in favor
of potential intervenors.'” Davis, 560
Fed.Appx. at 489-490 (quoting Purnell v. City of
Akron, 925 F.2d 941, 950 (6th Cir. 1991). “[C]lose
cases should be resolved in favor of recognizing an interest
under Rule 24(a).” Grutter v. Bollinger, 188
F.3d 394, 399 (6th Cir. 1999). See also
Davis, 560 Fed.Appx. at 490.
Court will address each of ...