UNITED STATES BANKRUPTCY COURT

WESTERN DISTRICT OF TEXAS

In Re: )
) Case No. 12-50074-lmc
DELTA PRODUCE, LP, et al. )
)
Chapter 11
Hon. Leif M. Clark


REPLY IN SUPPORT OF THE PACA
TRUST CLAIM OF MULLER TRADING COMPANY, INC.

Muller Trading Company, Inc. (the Claimant), by and through its undersigned counsel,
hereby files its Reply in Support of Claimants PACA trust claim and states as follows:
RESPONSE
Special PACA Counsels 1st Objection Neither the proof of claim nor Deltas
records reflect delivery and acceptance of the product. Delta objects to claims for attorneys fees
as noted in the general objection. [D.E. #159].
R&J Groups Objection - Claimant has failed to establish Delivery or receipt of the
perishable agricultural commodities listed in their claim. [D.E. 184].
RESPONSE to [D.E. #159 & #184]: As indicated on Claimants invoice to the Debtor,
the applicable shipping terms were F.O.B. shipping point, which meant that the Debtor arranged
for the transportation of the product.
1
This also means that the Debtor accepted the product
when Debtors truck picked-up and otherwise loaded the Claimants product.

1
F.O.B. shipping point means that the commodity is placed free on board the carrier at shipping point in
suitable shipping condition, and that the buyer assumes all risk of damage and delay in transit not caused by the
seller. This means, for example, that if a load is wrecked or stolen in transit, the buyer must pay the invoice price to
the seller and file a claim with the carrier to recover damages. Under F.O.B. terms, the seller guarantees that the
product, when loaded onto the carrier, is in Suitable Shipping ConditionSuitable Shipping Condition, or what
is commonly referred to as the warranty of suitable shipping condition, is applicable only in F.O.B. sales, and means
that produce, at the time of shipment, is in a condition which if handled under normal transportation conditions will
assure delivery at the contract destination without abnormal deterioration. Id. (emphasis in original). Fair Trading
Regulations, United States Department of Agriculture (Feb. 16, 2012),
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2
In this case, the Claimant did not arrange for the truck, did not prepare a bill of lading and
did not bear the risk of loss after the Debtor loaded the Claimants product onto its truck.
Notwithstanding the above, the relevant bill of lading clearly indicates that the Debtors truck
J. Rocha Trucking picked up the product identified in the Claimants PACA trust claim at
Southgate Cold Storage in McAllen, Texas and signed for said product. A true and correct copy
of the aforementioned bill of lading is attached hereto as Exhibit A.
In addition to the signed bill of lading, it is important to note that the Debtor failed to
notify the Claimant of any problems with objections to its receipt of Claimants invoice for said
produce. The Debtors failure to object to its receipt of an invoice for the product identified on
Claimants Invoice No. SAW00300 coupled with the signed bill of lading clearly illustrates the
Debtors receipt and acceptance of said product.
Special PACA Counsels 2nd Objection Pursuant to the Claim Order paragraph 15,
attorneys fee claims are not to be presented at this time; therefore, Delta objects to all such fees,
reserving any further objections to the substance of such claims to such time that attorneys fees
applications are presented. [D.E. #159].
RESPONSE to [D.E. #159]: As indicated on the face of the Claimants unpaid invoice,
Claimant is the holder of a contractual right to recover its attorneys fees and costs incurred in
this litigation. Moreover, Claimants right to recover attorneys fees and costs are an
indistinguishable component of the Claimants PACA trust claim and must be asserted as such.
Specifically, the Claimant does not waive its right to recover its attorneys fees and costs as an
indistinguishable part of its PACA trust claim via a separate filing. With that said, the Claimant
shall file its application for the recovery of attorneys fees pursuant to the Courts order.

http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=FairTradingRegulatio
nsPACATrainingTerms.

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3

3

Dated: April 16, 2012 Respectfully submitted,
MULLER TRADING COMPANY, INC.

/s/ Bruce W. Akerly
Bruce W. Akerly
CANTEY HANGER LLP
1999 Bryan Street, Suite 3300
Dallas, Texas 75201
Telephone: (214) 978-4100
Facsimile: (214) 978-4150
bakerly@canteyhanger.com
Attorney for the Plaintiff
and

Jason R. Klinowski, Esq.
(Applications for Pro Hac Vice Forthcoming)
FREEBORN & PETERS LLP
311 S. Wacker Dr., Suite 3000
Chicago, Illinois 60606
Telephone: (312) 360-6000
Facsimile: (312) 360-6570
jklinowski@freebornpeters.com
Attorneys for the Plaintiff



CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the forgoing, along with any and all
exhibits thereto, if any, was filed and served upon all counsel of record properly registered with
the Courts CM/ECF system, this 16 th day of April, 2012.


/s/ Bruce W. Akerly
Bruce W. Akerly
CANTEY HANGER LLP
1999 Bryan Street, Suite 3300
Dallas, Texas 75201
Telephone: (214) 978-4100
Facsimile: (214) 978-4150
bakerly@canteyhanger.com
Attorney for the Plaintiff
2618377v1/28551-0001
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12-50073-lmc Doc#205-1 Filed 04/16/12 Entered 04/16/12 15:59:03 Exhibit Pg 1 of 1
04/03/2012 15:25 18475497758
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