Ruby Robinson Company, Inc. v. Kalil Fresh Marketi , 388 F. App'x 421 ( 2010 )

Case: 09-20754 Document: 00511187682 Page: 1 Date Filed: 07/28/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 28, 2010
No. 09-20754 Lyle W. Cayce
Summary Calendar Clerk
RUBY ROBINSON COMPANY, INCORPORATED,
Plaintiff - Appellee,
v.
KALIL FRESH MARKETING INC., doing business as HOUSTON’S FINEST
PRODUCE COMPANY, JOHN KALIL, BRYAN HERR, SAMUEL PETRO,
JR., MIKE PETRO, and QUALITY BANANA COMPANY,
Defendants-Appellees,
v.
SUN VALLEY PRODUCE COMPANY, INC.; CLASSIC SALADS, L.L.C.,
Intervenor Plaintiffs - Appellants,
v.
C.H. ROBINSON COMPANY, DEL MONTE FRESH PRODUCE N.A.,
INCORPORATED, AMEGY BANK NATIONAL ASSOCIATION, DAVID L.
BRUNE, doing business as C & D PRODUCE, MONTEREY MUSHROOMS,
INCORPORATED, SOUTHERN SPECIALTIES, INCORPORATED,
NATURIPE FARMS, INCORPORATED, CAPURRO MARKETING, L.L.C.,
GROWERS EXPRESS, L.L.C., RELIABLE PRODUCE SOURCING, L.L.C.,
DAYKA & HACKETT, L.L.C., FIELD FRESH FARMS, L.L.C.,
CHRISTOPHER RANCH, L.L.C., DRISCOLL STRAWBERRY ASSOCIATES,
INCORPORATED, COLORFUL HARVEST, L.L.C., CORONA-COLLEGE
HEIGHTS ORANGE & LEMON ASSOCIATION, BABE FARMS,
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INCORPORATED, ROMAS “R” US, INCORPORATED, TUTULI PRODUCE
INTERNATIONAL COMPANY, BROTHERS PRODUCE INCORPORATED,
GEMCO, INCORPORATED, R.C. PRODUCE CO., INCORPORATED, J.
LUNA PRODUCE CO., INCORPORATED, MURPHY TOMATO CO.,
INCORPORATED, RIVERA FRESH PRODUCE, INCORPORATED,
MEXICAN HARVEST CORPORATION, WESTERN MISSOURI FRUIT
SALES INCORPORATED, CHIQUITA FRESH NORTH AMERICA, L.L.C.,
COOSEMANS HOUSTON, INCORPORATED, DIMARE FRESH,
INCORPORATED, GREENLINE FOODS, INCORPORATED, SEMINOLE
PRODUCE DISTRIBUTING CO., INCORPORATED, THIRD COAST
PRODUCE COMPANY, LIMITED, AMERIFRESH, INCORPORATED,
BILLINGSLEY PRODUCE SALES, INCORPORATED, FRU-VEG
MARKETING, INCORPORATED, HARVEST FRESH GROWERS,
INCORPORATED, HOUSTON CALCO, INCORPORATED, HURSTS BERRY
FARMS, INTEGRITY DISTRIBUTION SERVICES, L.L.C., LAWRENCE
DISTRIBUTING CO., INCORPORATED, POTANDON PRODUCE, L.L.C.,
CALIFORNIA SPECIALTY PRODUCE, INCORPORATED, NATUREBEST
PRE-CUT & PRODUCE L.L.C., PACIFIC SUN DISTRIBUTING,
INCORPORATED, J NATIONAL FOOD PRODUCTS, INCORPORATED,
also known as NATIONAL FOOD PRODUCTS, INCORPORATED,
Intervenors Plaintiffs - Appellees.
Appeal from United States District Court
for the Southern District of Texas;
U.S.D.C. No. 08CV199
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Appellants Sun Valley Produce, Inc., and Classic Salads, L.L.C., appeal
the district court’s denial of their Motion to Enlarge Time and for Leave to File
PACA Proofs of Claim Instanter (“Motion to Enlarge Time”). Because we lack
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
2
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jurisdiction over the Appellants’ interlocutory appeal,1 we deny the appeal and
remand the case to the district court.
This case arose out of the Defendant-Appellee Houston’s Finest’s inability
to pay for produce purchased from a number of its suppliers. On January 16,
2008, Plaintiff-Appellee Ruby Robinson Co., Inc. filed a complaint in the district
court against Defendants Kalil Fresh Marketing, Inc., d/b/a Houston’s Finest
Produce Company (“Houston’s Finest”), John Kalil, Bryan Herr, and Samuel
Petro seeking payment for produce under the trust provisions of the Perishable
Agricultural Commodities Act (“PACA”), 7 U.S.C. §499e(c). Counsel for
Appellant Sun Valley Produce Company, Inc. (“Sun Valley”) filed a Notice of
Appearance on January 28, 2008, and a motion to intervene in the action on
January 29, 2008. Because Houston’s Finest had a limited pool of assets, all of
the suppliers, including Appellants’ counsel, stipulated to an order establishing
a procedure for identifying, liquidating and distributing the PACA trust assets
to the qualified PACA Trust Beneficiaries. The district court entered this Order
on January 7, 2009. Pursuant to the district court’s January 7th Order, all
suppliers were required to file a PACA Proof of Claim on or before February 27,
2009.
Appellants failed to file their PACA Proof of Claim. During the eight
months that followed the February 27th deadline, forty-eight other suppliers
filed their complaints, answers, objections and declarations, all of which were
served on all parties (including Appellants’ counsel). Then, on October 29, 2009,
more than eight months after the deadline to file claims, the Appellants filed
their Motion to Enlarge Time to file their PACA claim, as well as their objections
to the distribution of PACA trust assets.
1
We must examine the basis of our jurisdiction on our own motion if necessary. Mosley
v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).
3
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On November 3, 2009, the district court denied Appellants’ request to
enlarge the time for filing a PACA claim and overruled Appellants’ objections to
distribution. Appellants immediately appealed from the rulings of the district
court.
This Court is without jurisdiction over the Appellants’ appeal. See
Pemberton v. State Farm Mut. Auto. Ins. Co., 996 F.2d 789, 791 (5th Cir. 1993)
(“Federal appellate jurisdiction is predicated on federal subject matter
jurisdiction over the matter in dispute and the existence of a final judgment or
otherwise appealable order under 28 U.S.C. § 1291, 28 U.S.C. § 1292, or Federal
Rule of Civil Procedure 54(b).”). “The rule that only final decisions are
appealable is intended to promote judicial economy by preventing multiple
appeals in the same case.” Id. Consequently, this Court lacks jurisdiction over
the Appellants’ appeal because the appeal is not from a final order, but rather,
arises from an unappealable interlocutory order.2
Appellants, however, assert that 28 U.S.C. § 1292(a)(2) vests this Court
with jurisdiction. Appellants’ assertion is without merit since Congress limited
Secion 1292(a)(2)’s jurisdictional grant to “[i]nterlocutory orders appointing
receivers, or refusing orders to wind up receiverships or to take steps to
accomplish the purposes thereof, such as directing sales or other disposals of
property.” See also, Warren v. Bergeron, 831 F.2d 101, 103 (5th Cir. 1987)
(“Congress decided to make interlocutory orders appointing receivers
appealable.”). The district court’s denial of Appellants’ Motion to Enlarge Time
does not constitute an order “appointing [a] receive[r]” nor can it be understood
2
We note that the district court did not issue a 28 U.S.C. § 1292(b) certificate
authorizing an interlocutory appeal for our discretionary acceptance.
4
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as “refusing orders to wind up [a] receivershi[p].” See 28 U.S.C. § 1292(a)(2).
This appeal is in no way related to a receivership.3
Furthermore, Appellants cite no authority for the application of §
1292(a)(2)’s appellate jurisdiction over district court orders denying motions to
enlarge time to file objections or claims— and we know of none. Consequently,
we decline the opportunity to extend § 1292(a)(2)’s application beyond the
boundaries clearly delineated by Congress.
Accordingly, the Appellants’ appeal is DISMISSED for lack of jurisdiction
and the case is remanded to the district court for further proceedings.
3
We note that the Appellants do not argue that their appeal in any way involves a
receivership.
5