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Evergreen International, Inc. v. Harisiadis

April 28, 2008

EVERGREEN INTERNATIONAL, INC., AN ILLINOIS CORPORATION, AND BORZYNSKI BROS. DISTRIBUTING, INC., A WISCONSIN CORPORATION, PLAINTIFF,
v.
NICHOLAS HARISIADIS, AN INDIVIDUAL, AND ERROL SUKRU, AN INDIVIDUAL, DEFENDANTS.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM ORDER

Evergreen International, Inc. ("Evergreen") and Borzynski Bros. Distributing, Inc. ("Borzynski") have joined in suing Nicholas Harisiadis and Errol Sukru, each plaintiff claiming a violation of the Perishables Agricultural Commodities Act ("PACA") in connection with its sales of produce to SFIROS, Inc. d/b/a Nat's Garden produce & Taterman ("Nat's Garden"). Nat's Garden has filed a Chapter 7 bankruptcy petition in February of this year, and the two individual defendants are charged with having violated their responsibilities relating to Nat's Garden's required compliance with PACA (each of them is a Nat's Garden director and officer and has controlled or was in a position to control its assets).

Although this Court is contemporaneously issuing its initial scheduling order in this action, it considers Evergreen's and Borzynski's joinder as plaintiffs in a single action such as this one to be problematic. So far as their Complaint is concerned, they are totally unrelated companies, and their sales to Nat's Garden did not "aris[e] out of the same transaction, occurrence, or series of transactions or occurrences" as is required for their joinder as plaintiffs under Fed.R.Civ.P. 20(a).

Accordingly this Court's view is that one or the other must be dismissed from this action (without prejudice, of course). If counsel for Evergreen and Brozynski has authority to support their joinder rather than their having to file separate actions, counsel is ordered to file a memorandum in that respect on or before May 9, 2008.

20080428

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