Sunny Produce and Brokerage, LLC v. Sasita Produce, LLC

UNITED STATES DISTRICT COURT August 15, 2025

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

MCALLEN DIVISION

SUNNY PRODUCE AND §

BROKERAGE, LLC, §

§

Plaintiff, §

§

v. § Civil Action No. 7:25-CV-00390

§

SASITA PRODUCE, LLC and §

SEVERO PEREZ, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

This is an action brought under the Perishable Agricultural Commodities Act

(“PACA”), 7 U.S.C. §§ 499a–499t, to enforce the trust provisions in 7 U.S.C. § 499e(c).

Plaintiff Sunny Produce and Brokerage, LLC (“Sunny Produce”), a licensed PACA seller,

alleges that between October 26, 2024, and February 16, 2025, it sold perishable

agricultural commodities to Defendant Sasita Produce, LLC (“Sasita Produce”) and that

$160,132.38 remains unpaid and subject to PACA’s statutory trust.

Pending before the Court is Plaintiff’s Ex Parte Motion for Temporary Restraining

Order under Federal Rules of Civil Procedure 65(b) against Sasita Produce and its

principal, Severo Perez (collectively “Defendants”). (Dkt. No. 8). Having reviewed the

Motion, supporting declarations, and relevant filings, the Court GRANTS the motion for

the reasons below.

I. BACKGROUND

Between October 26, 2024, and February 16, 2025, Sunny Produce, a Texas limited

liability company, sold $171,410.13 in fresh produce to Sasita Produce, an Alabama

limited liability company, in interstate commerce. (Dkt. No. 1 at 1–2). Only $1,002.75 has

been paid. (Id. at 2). The balance—$160,132.38—involves PACA commodities.1 (Id. at 2–

3). Sasita Produce accepted the produce but has neither paid nor contested the invoices

and has ignored repeated demands for payment. (Id.).

On August 7, 2025, Sunny Produce sued for breach of contract, (id. at 3–4);

declaratory relief under PACA, (id. at 4–5); PACA trust enforcement, (id. at 5–6); failure

to create a PACA trust, (id. at 6–7); failure to pay promptly under PACA, (id. at 7); breach

of fiduciary duty to PACA trust beneficiaries, (id. at 7–8); and unlawful retention of PACA

trust assets, (id. at 8–9).

On August 11, 2025, it filed the present motion requesting an ex parte temporary

restraining order (“TRO”). (Dkt. No. 8). The Motion is supported by the declaration of

its manager, Norma Myers (“Myers’s Declaration”), (Dkt. No. 8-2); and a certification

from its counsel as to why the TRO should issue without notice to Sasita Produce

(“Certification of Counsel”), (Dkt. No. 8-3). In addition to supporting the factual

allegations above, Myers’s Declaration attests that Sasita Produce is in severe financial

issues and, absent injunctive relief, will likely continue to dissipate PACA trust assets.

(Dkt. No. 8-2 at 8–9). The Certification of Counsel explains that advance notice would

1 Sunny Produce states that certain shipped commodities, worth a total of $10,275.00, are

not listed in the PACA commodity schedule. (Dkt. No. 1 at 3).

allow Defendants to transfer or conceal trust assets, frustrating PACA’s protections. (Dkt.

No. 8-3 at 1–3).

II. LEGAL STANDARD

To obtain a TRO, the movant must show:

1) a “substantial likelihood of success on the merits”;

2) a “substantial threat of irreparable injury”;

3) that “the threatened injury outweighs any harm the order might cause to

the defendant”; and

4) that “the injunction will not disserve the public interest.”

Beyhaqi v. Noem, ____ F.Supp.3d at ____, No. 4:25-CV-01788, 2025 WL 1196003, at *2 (S.D.

Tex. Apr. 22, 2025) (citing Enrique Bernat F., S.A. v. Guadalajara, Inc., 210 F.3d 439, 442 (5th

Cir. 2000)). Failure to meet any element defeats the request. CF Trade, LLC v. Duse Exports,

LLC, No. 7:25-CV-00214, 2025 WL 1549460, at *2 (S.D. Tex. May 30, 2025) (quoting Enter.

Int’l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 1985)).

A party seeking an ex parte TRO—one issued without written or oral notice to the

non-moving Party—must also (1) present “specific facts in an affidavit or a verified

complaint” showing “that immediate and irreparable injury, loss, or damage” will occur

“before the adverse party can be heard”; and (2) submit a written certification from “the

movant’s attorney” explaining why notice “should not be required.” Fed. R. Civ. P.

65(b)(1).

If these requirements are met, the court may issue an ex parte TRO “to preserve the

status quo and prevent irreparable harm” until it decides whether to grant further

injunctive relief. Beyhaqi, ____ F.Supp.3d at ____, 2025 WL 1196003, at *2 (first citing

Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Loc. No. 70, 415 U.S. 423,

439, 94 S.Ct. 1113, 1124, 39 L.Ed.2d 435 (1974); and then citing Moore v. Brown, 868 F.3d

398, 402 (5th Cir. 2017) (per curiam)); see A. A. R. P. v. Trump, 605 U.S. ____, ____, 145 S.Ct.

1364, 1368, 221 L.Ed.2d 765 (2025) (per curiam). Such orders “should be restricted to

serving their underlying purpose of preserving the status quo and preventing irreparable

harm just so long as is necessary to hold a hearing, and no longer.” Granny Goose Foods,

415 U.S. at 439, 94 S.Ct. at 1124.

III. DISCUSSION

1. Likelihood of Success on the Merits

a. PACA Claims

PACA is “a Depression-era statute designed to protect sellers of perishable

produce from delinquent purchasers.” A & A Concepts, LLC v. Fernandez, 107 F.4th 478,

483 (5th Cir. 2024) (quoting In re Delta Produce, L.P., 845 F.3d 609, 612 (5th Cir. 2016)). It

creates a statutory “trust that requires produce buyers to hold their produce-related

assets as fiduciaries until full payment is made.” CF Trade, LLC, 2025 WL 1549460, at *2

(citing 7 U.S.C. § 499e(c)(2)). The trust arises automatically upon delivery if the seller

complies with PACA’s notice requirements. Id. (first citing 7 U.S.C. § 499e(c); and then

citing 7 C.F.R. § 46.46(f)).

“To recover under PACA’s trust provisions,” a plaintiff must prove “that it is a

trust beneficiary, and that a PACA trust was formed.” Id. (quoting Paisano Cap. SA de CV

v. 23 Tex. Produce, Inc., No. 3:19-CV-00852, 2019 WL 3239152, at *3 (N.D. Tex. July 18,

2019)). A trust is formed if the plaintiff shows by a preponderance of the evidence that:

1) the goods sold were perishable agricultural commodities;

2) the purchaser was a commission merchant, a dealer, or broker;

3) the transaction occurred in interstate or foreign commerce;

4) the seller has not received full payment;

5) the seller preserved its trust rights by giving the purchaser written notice;

and

6) the payment terms did not exceed PACA’s statutory limits.

Id.; 7 U.S.C. § 499e(c); see Mirasoles Produce USA, LLC v. TALYGAP Produce, Inc., No. 7:22-

CV-00055, 2022 WL 1165151, at *3 (S.D. Tex. Apr. 20, 2022) (collecting cases for these

elements).

The record shows that Sunny Produce is likely to satisfy each element. The Myers

Declaration provides evidence that:

1) The produce at issue qualifies as PACA trust-eligible perishable

agricultural commodities. (Dkt. No. 8-2 at 2–6) (¶¶ 10–25); (id. at 10–40)

(Exs. 1–15).

2) Sasita Produce was licensed under PACA, or subject to PACA licensing, at

the time of the delivery. (Id. at 7–8) (¶¶ 33–35); (id. at 45–46) (Ex. 17).

3) The produce shipments occurred in interstate commerce. (Id. at 2–6)

(¶¶ 10–25); (id. at 10–40) (Exs. 1–15).

4) Sasita Produce failed to make full payment. (Id. at 6, 8) (¶¶ 26–29, 39).

5) Sunny Produce preserved its rights by including the statutory-trust

language on each invoice, as required by the Parties’ credit agreement. (Id.

at 2) (¶ 8); (id. at 10–40) (Exs. 1–15).

6) And each invoice stated, “Pay Terms: PACA Prompt,” (id. at 12–40) (Exs. 2–

15), meaning that payment was “due within ten (10) days” of acceptance,

(id. at 6). This complies with PACA’s maximum payment period. See

Mirasoles Produce USA, LLC, 2022 WL 1165151, at *3 & n.39 (first citing 7

U.S.C. § 499b(4); then citing 7 C.F.R. § 46.2(aa)(5); and then citing 7 C.F.R.

§ 46.46(e)(2)).

Accordingly, Sunny Produce has demonstrated that it is likely to prevail on its

PACA trust claim.

b. Breach-of-Contract Claim

Sunny Produce also asserts a breach-of-contract claim. (Dkt. No. 1 at 3–4). Under

Texas law, a breach-of-contract claim requires (1) a valid contract; (2) performance by the

plaintiff; (3) breach by the defendant; and (4) damages to the plaintiff as a result of the

breach. Conn Credit I, L.P. v. TF LoanCo III, LLC, 903 F.3d 493, 499–500 (5th Cir. 2018).2

The record supports each element. It shows: (1) an agreement for Sunny Produce

to sell fresh produce to Sasita Produce on credit, (see Dkt. No. 8-2 at 2–6, 10–40);

(2) delivery of the produce, (id.); (3) failure to pay the amounts due, (id. at 6, 8); and

(4) resulting damages to Sunny Produce, (see id. at 2–3, 6). “These facts, if proved,

establish a breach of contract.” CF Trade, LLC, 2025 WL 1549460, at *3; see Mirasoles

Produce USA, LLC, 2022 WL 1165151, at *4.

2. Immediate and Irreparable Injury

To demonstrate irreparable harm, “the injury at issue must be actual and

imminent” and there must be “no remedy at law, such as monetary damages.” Allied

Home Mortg. Corp. v. Donovan, 830 F.Supp.2d 223, 227 (S.D. Tex. 2011) (first citing Watson

2 “As there are no facts to implicate any forum other than Texas, the Court assumes that

Texas contract law applies to the dispute.” CF Trade, LLC, 2025 WL 1549460, at *3 n.2.

v. Fed. Emergency Mgmt. Agency, 437 F.Supp.2d 638, 648 (S.D. Tex. 2006); and then citing

Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011)). Courts have routinely held that

threatened dissipation of a PACA trust constitutes irreparable harm. See, e.g., CF Trade,

LLC, 2025 WL 1549460, at *4; TRO, Avocado Love Mktg. LLC v. Dominguez Fresh Produce

LLC, No. 7:21-CV-00412 (S.D. Tex. Oct. 25, 2021), Dkt. No. 13 at 2; Rio Vista Ventures, LLC

v. Valvilla Produce, LLC, No. 7:20-CV-00325, 2020 WL 8300522, at *3 (S.D. Tex. Nov. 4,

2020); TRO, Ergo Produce, Inc. v. Produce Depot LLC, No. 7:19-CV-00122 (Apr. 25, 2019),

Dkt. No. 12 at 3; Country Fresh, LLC v. Wayne & Annie’s Kitchen Inc., No. 4:16-CV-01880,

2016 WL 10956514, at *1 (S.D. Tex. June 29, 2016).3 A movant need only show the threat

of dissipation to obtain injunctive relief. See Frio Ice, S.A. v. Sunfruit, Inc., 918 F.2d 154,

159 & n.8 (11th Cir. 1990).

Here, Sunny Produce alleges that Sasita Produce tendered five checks between

December 2024 and February 2025, each returned for insufficient funds, and has made no

payments since. (Dkt. No. 8-2 at 6). Sunny Produce’s representative declares under

penalty of perjury that Sasita Produce owes $160,132.38 for PACA commodities, has

ignored repeated payment demands, and appears to be “experiencing severe financial

issues.” (Id. at 8–9). The representative believes that without a TRO and other injunctive

relief, “Sasita Produce and Mr. Perez will continue to neglect to pay Sunny Produce’s

3 See also Frio Ice, S.A. v. Sunfruit, Inc., 918 F.2d 154, 159 (11th Cir. 1990) (“The legislative

history noted that once the trust is dissipated it is almost impossible for a beneficiary to obtain

recovery. Congress recognized that dissipation of trust assets would undermine PACA . . . .

Thus, preventing dissipation of the trust is a key purpose of PACA.” (internal citations omitted)).

PACA trust claim and exacerbate the situation through further dissipation of the PACA

trust.” (Id.).

The Court finds that Sunny Produce has shown a substantial threat of immediate

and irreparable harm from the likely dissipation of the alleged PACA trust. See Rio Vista

Ventures, LLC, 2020 WL 8300522, at *3. The Declaration also satisfies Rule 65(b)(1)(A)’s

requirement to “clearly show” irreparable harm “before the adverse party can be

heard”: Sasita Produce’s five recent payments were returned for insufficient funds, (Dkt.

No. 8-2 at 6), it has not participated in the administrative proceedings initiated against it,

and its PACA license is set to be revoked on August 20, 2025, for delinquent payments,

(id. at 7–8). These facts indicate serious financial problems.

Finally, Sunny Produce’s counsel also filed a “Certification of Counsel as to Why

Notice Should Not Be Required Pursuant to Rule 65(b).” (Dkt. No. 8-3). The Court agrees

that notice would risk further dissipation of trust assets required by statute to be

preserved for Sunny Produce’s benefit. (Id. at 1). A temporary restraining order without

notice is therefore warranted. See Country Fresh, LLC, 2016 WL 10956514, at *1 (finding

immediate and irreparable injury from continued PACA trust dissipation absent relief).

3. The Balance of Harms

When a PACA trust is threatened with dissipation, the balance of harms favors the

unpaid trust beneficiaries. See, e.g., CF Trade, LLC, 2025 WL 1549460, at *4; Great Union

Mktg., LLC v. Twin Bros. Produce, LLC, No. 7:23-CV-00043, 2023 WL 5687034, at *4 (S.D.

Tex. July 25, 2023); Rio Vista Ventures, LLC, 2020 WL 8300522, at *3; Grupo Empaque Roquin

S.A. de C.V. v. Empire Produce USA LLC, No. 7:12-CV-00095, 2012 WL 12873755, at *3 (S.D.

Tex. Mar. 19, 2012). Once trust assets are dissipated, unpaid trust beneficiaries are

unlikely to recover their interests. See Frio Ice, S.A., 918 F.2d at 159. But because PACA

already requires buyers to preserve trust funds for the benefit of sellers, an injunction

merely compels defendants to do only “what they are already legally required to do.” CF

Trade, LLC, 2025 WL 1549460, at *4 (quoting Great Union Mktg., 2023 WL 5687034, at *4);

Grupo Empaque Roquin S.A. de C.V., 2012 WL 12873755, at *3. Any burden from the

injunction is therefore minimal compared to the risk that a trust beneficiary will lose the

trust assets altogether. Grupo Empaque Roquin S.A. de C.V., 2012 WL 12873755, at *3.

Additionally, “Congress specifically singled out the potential harm to unpaid

sellers in the perishable agricultural commodities industry for special protection under

PACA” and mandated that unpaid suppliers should not “be relegated to seek money

damages only, especially when dealing with a financially unstable debtor who is

dissipating trust assets.” Rio Vista Ventures, LLC, 2020 WL 8300522, at *3 (quoting

Tanimura & Antle, Inc. v. Packed Fresh Produce, Inc., 222 F.3d 132, 140 (3d Cir. 2000)). The

Fifth Circuit has likewise recognized that a court may “maintain the status quo” and

freeze assets “limited to the property in dispute or its direct, traceable proceeds,” when

doing so is necessary to make “a meaningful decision on the merits.” Id. (quoting Janvey,

647 F.3d at 600).

The Court therefore finds that the potential injury from denying Sunny Produce’s

request for a temporary restraining order—and possibly permitting further dissipation

of trust assets—outweighs any harm to Defendants from issuing the order.

4. The Public Interest

Congress has declared that preserving PACA trust assets for the benefit of produce

sellers serves “the public interest.” CF Trade, LLC, 2025 WL 1549460, at *4 (first quoting

Sanzone Brokerage, Inc. v. J&M Produce Sales, Inc., 547 F.Supp.2d 599, 603 (N.D. Tex. 2008);

and then citing 7 U.S.C. § 499e(c)(1) (stating that PACA was enacted “to remedy [the]

burden on commerce in perishable agricultural commodities and to protect the public

interest” (alteration in original))). Protecting sellers’ rights and ensuring prompt

payment for perishable commodities reflects Congress’s policy judgment—one this

Court will not second-guess. See id.

The Court finds that a TRO in this case aligns with, and does not disserve, the

public interest. See id.; Great Union Mktg., 2023 WL 5687034, at *4; Rio Vista Ventures, LLC,

2020 WL 8300522, at *4 & n.41 (collecting cases); Grupo Empaque Roquin S.A. de C.V., 2012

WL 12873755, at *3.

5. Bond

Rule 65(c) generally requires a movant to provide security “in an amount that the

court considers proper” before issuing preliminary injunctive relief. CF Trade, LLC, 2025

WL 1549460, at *4 (first citing Fed. R. Civ. P. 65(c); and then citing A.T.N. Indus., Inc. v.

Gross, 632 F.App’x 185, 192 (5th Cir. 2015) (per curiam)). In PACA cases, courts often

require little or no additional security. See id.; Great Union Mktg., 2023 WL 5687034, at *4;

Rio Vista Ventures, LLC, 2020 WL 8300522, at *4.

Here, the Court finds that the $160,132.38 in alleged PACA trust assets in Sasita

Produce’s possession may serve as Sunny Produce’s bond. No additional security will

be required. See CF Trade, LLC, 2025 WL 1549460, at *4; Great Union Mktg., 2023 WL

5687034, at *4; Country Fresh, LLC, 2016 WL 10956514, at *2.

IV. CONCLUSION

Considering the foregoing analysis, the Court GRANTS Plaintiff’s Ex Parte

Motion for a Temporary Restraining Order, (Dkt. No. 8).

IT IS ORDERED that:

1. Defendants Sasita Produce, LLC and Severo Perez and their officers,

agents, servants, employees, attorneys, assigns, and all persons in active

concert or participation with them, including their banks and financial

institutions, are TEMPORARILY RESTRAINED from dissipating, paying,

assigning, transferring, or otherwise encumbering any assets subject to

PACA’s trust provisions4 without Plaintiff Sunny Produce and Brokerage,

LLC’s agreement or until further order of this Court, except for:

a) payment to Plaintiff Sunny Produce and Brokerage, LLC; or

b) sales of perishable agricultural commodities or products derived

from perishable agricultural commodities for fair compensation,

without right of set-off, provided that the proceeds are maintained

as PACA trust assets subject to this Order.

4 Under Section 499e(c)(2), the assets subject to this Temporary Restraining Order include

all of the assets of Plaintiff Sunny Produce and Brokerage, LLC, unless Defendants Sasita Produce,

LLC and Severo Perez can prove to this Court that a particular asset is not derived from

(1) perishable agricultural commodities; (2) inventories of food or other products derived from

perishable agricultural commodities; or (3) receivables or proceeds from the sale of such

commodities or products. 7 U.S.C. § 499e(c)(2).

2. Within three days of this Order’s issuance, Plaintiff Sunny Produce and

Brokerage, LLC is ORDERED to serve all Defendants, or their resident

agent or counsel, with a copy of this Temporary Restraining Order, the

Complaint, and the Motions for Temporary Restraining Order and

Preliminary Injunction via personal service, electronic mail, facsimile

transmission or delivery by a carrier or courier. This Temporary

Restraining Order is not effective or binding upon any person or entity until

such person or entity has been served with this order or received actual

notice of it.

3. Within three days of being served, Defendants Sasita Produce, LLC and

Severo Perez are ORDERED to serve this Order on all banking or financial

institutions with which they do business and any other person or entity

holding assets for or on behalf of Defendants.

4. Within three days of accomplishing service, Defendants Sasita Produce,

LLC and Severo Perez are ORDERED to file a certificate of service listing

all persons and entities served.

5. It is ORDERED that the $160,132.38 in PACA trust assets belonging to

Plaintiff Sunny Produce and Brokerage, LLC and in the possession of

Defendant Sasita Produce, LLC will serve as Plaintiff Sunny Produce and

Brokerage, LLC’s security for this injunction as required by Rule 65(c) of the

Federal Rules of Civil Procedure.

6. This TRO is issued on August 15, 2025, and expires on August 25, 2025,

unless extended by Court order.

7. A hearing on Plaintiff's Motion for Preliminary Injunction is set for August

25, 2025, at 2:00 p.m. before Judge Tipton by zoom video. Any opposition

papers must be filed by August 22, 2025, and personally served or served

by fax or email upon Plaintiff Sunny Produce and Brokerage, LLC’s

counsel. The Zoom link and login is:

https://www.zoomgov.com/j/1610690763?pwd=Y1ZydDU3TWxIUDNIa

OFrSj VXNIFVUTO9

Meeting ID: 161 069 0763

Passcode: 307095

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Per L.R. 83.7 Except by leave of the presiding judge, no photo- or electro-

mechanical means of recordation or transmission of court proceedings is

permitted.

It is SO ORDERED.

Signed on August 15, 2025.

DREW B. TIPTON

UNITED STATES DISTRICT JUDGE

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