December 21, 2012
By ANDY DAVIS, Arkansas Democrat-Gazette
A New Jersey company has asked a judge to reopen a lawsuit over claims that thousands of Tempur-Pedic mattresses meant for Hurricane Katrina victims and other people in need were illegally diverted to a company affiliated with the Tony Alamo Christian Ministries.
Tempur-Pedic International states in the lawsuit, filed in 2007, that it gave the mattresses to Waste to Charity, a New Jersey nonprofit organization, to be distributed to the hurricane victims and others.
The mattress company, based in Lexington, Ky., says it later learned that Waste to Charity sold 4,000 of the mattresses to the ministry-affiliated company Action Distributors for at least $99,000.
Action Distributors then sold the mattresses to Close Out Surplus and Savings, a New Jersey-based merchandise liquidator, for $500,000.
About 3,500 mattresses are in a Booneville warehouse owned by members of the Alamo ministry, according to court records. Others are in a New Jersey warehouse owned by Close Out Surplus and Savings.
Under a 2007 order, the mattresses can’t be moved until the lawsuit is resolved.
Proceedings in the case were put on hold in 2008 after Waste to Charity, its president and Thomas Scarcello, a ministry member who worked for Action Distributors, filed for bankruptcy.
In a court filing last month asking for the case to be reopened, an attorney for Close Out Surplus and Savings said the bankruptcies have been resolved, the Arkansas Democrat-Gazette (http://is.gd/2SCvLG ) reported.
The liquidator says it is the rightful owner of the mattresses because it bought them in “good faith.”
Close Out Surplus and Savings “is entitled to a judicial determination of whether its interest in the mattresses is superior to Tempur-Pedic’s interest,” the attorney, Brandon Cate of Fayetteville, wrote in the filing.
Tempur-Pedic’s response to the request to reopen the case was originally due Dec. 10, but U.S. District Judge Robert Dawson agreed to extend the deadline to today.
“Tempur-Pedic intends to respond to the Motion, but cannot meaningfully do so without counsel’s voluminous records in this matter, all of which were moved to various off-site, out-of-state facilities after this Court’s Order closing the case,” an attorney for Tempur-Pedic, Ed Maluf of New York City, wrote in his request for the extension.
As part of the order keeping the mattresses from being moved, the mattress company was required to post a $500,000 bond meant to reimburse defendants in the case for any losses if the order is later found to have been unwarranted.
The lawsuit notes that property records list the owners of the warehouse as S. Astand E. Mercado, who gave as their address a Fouke post office box that had also been used by a grocery store operated by the ministry.
The warehouse and a nearby vacant lot were referred to the commissioner of state lands earlier this year after the owners failed to pay property taxes for three years, property records show.
Alamo, 78, was convicted in 2009 in federal court in Texarkana of taking five underage women across state lines for sex in violation of the federal Mann Act and was sentenced to 175 years in prison.