Sumecht NA, Inc. v. United StatesSumecht NA, Inc. v. United States
OPINION AND ORDER
[Plaintiff‘s Motion to Strike is denied. Plaintiff‘s Motion for Preliminary Injunction is denied.]
Dated: August 30, 2018
Stephen C. Tosini, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., argued for Defendant United States. With him on the brief were Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, Reginald T. Blades, Jr., Assistant Director, and Justin R. Miller, Senior Trial Counsel. Of counsel were David W. Campbell and Natan P.L. Tubman, Attorneys, Office of thе Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C. Daniel J. Calhoun, Of Counsel, Office of Chief Counsel for Import Administration, U.S. Department of Commerce, and Mercedes C. Morno, Of Counsel, Office of Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, also appeared.
Usha Neelakаntan, Wiley Rein, LLP, of Washington, D.C., argued for Defendant-Intervenor SolarWorld Americas, Inc. With her on the brief were Timothy C. Brightbill and Laura El-Sabaawi. Adam M. Teslik, Cynthia C. Galvez, Maureen E. Thorson, and Tessa V. Capeloto also appeared.
PROCEDURAL HISTORY
This court has jurisdiction pursuant to
Plaintiff filed a Motion for Rule 73.3(b) Accommodation, contending that the four documents encompassing the administrative record in this case were insufficient. See Order at 2, Apr. 13, 2018, ECF No. 36. Plaintiff argued that it would be prejudiced in litigating the case because it did not have access to documents in the underlying antidumping duty investigation that supported the China-wide rate. See id. at 4. The court denied Sumec‘s motion, recognizing that Plaintiff‘s cause of action is a pure question оf law and that the Parties are bound equally to the record when making their arguments due to the standard of review in cases brought under
Commerce published the final results of the administrative review on July 23, 2018, whiсh lifted the administrative stay. At that point, Sumec‘s relevant entries became subject to liquidation. Sumec filed a Motion for Temporary Restraining Order and Preliminary Injunction with this court, seeking relief from the possible liquidation of its entries. See Pl.‘s Mot. Prelim. Inj. The court issued the temporary restraining order on August 9, 2018. See Order, Aug. 9, 2018, ECF No. 43. Defendant United States (“Government“) and Defendant-Intervenor SolarWorld Americas, Inc. filed responses in opposition to Plaintiff‘s motion. See Def.‘s Opp‘n Pl.‘s Mot. Prelim. Injunctive Relief, Aug. 14, 2018, ECF No.
Plaintiff filed a Motion to Strike, objecting to certain claims and citations in Defendant‘s response. See Pl.‘s Mot. Strike. Defendant and Defendant-Intervenor both oppose Plaintiff‘s motion. See Def.‘s Opp‘n Pl.‘s Mot. Strike, Aug. 21, 2018, ECF No. 50 (“Def.‘s Opp‘n Mot. Strike“); Def.-Intervenor‘s Oрp‘n Pl.‘s Mot. Strike, Aug. 21, 2018, ECF No. 51. The court held a hearing on August 28, 2018. See Preliminary Injunction Hearing, Aug. 28, 2018, ECF No. 56.
ANALYSIS
I. Motion to Strike
Plaintiff contests Defendant‘s citation to a document in a previous case, which was proffered to show thаt Sumec‘s affiliate, Sumec Hardware, submitted comments to Commerce during the remand proceedings in the underlying administrative investigation. See Pl.‘s Mot. Strike 4. Plaintiff argues that inclusion of this information on the record would cause it severe prejudice. See id. at 5. Defendant counters that the reference is to public information, and that it included the citation to defend against any potential argument of unfair surprise. See Def.‘s Opp‘n Mot. Strike 1-2.
A motion to strike “constitutes an extraordinary remedy, and should be granted only in cases where there has been a flagrant disregard of the rules of court.” United States v. Am. Cas. Co. of Reading, Pa., 39 CIT __, 49 F. Supp. 3d 1346, 1347 (2015) (quoting Jimlar Corp. v. United States, 10 CIT 671, 673, 647 F. Supp. 932, 934 (1986)). Courts will not grant a motion to strike “unless the brief demonstrates a lack of good faith, or that the court would be prejudiced or misled by the inclusion in the brief of the improper material.” Id. (quoting Jimlar Corp., 10 CIT at 673, 647 F. Supp. at 934). This court has broad discretion when deciding a motion to strike. Fla. Tomato Exch. v. United States, 38 CIT __, 973 F. Supp. 2d 1334, 1338 (2014). Prioropinions from this Court have recognized that “[t]here is no occasion for a party to move to strike portions of an оpponent‘s brief (unless they be scandalous or defamatory) merely because he thinks they contain material that is incorrect, inappropriate, or not a part of the record.” Id. (citing Acciai Speciali Terni, S.p.A. v. United States, 24 CIT 1211, 1217, 120 F. Supp. 2d 1101, 1106 (2014)). Instead of filing a motion to strike, a party should raise those issues by stating its opposition in the brief or in a supplemental memorandum. Id. (citing Acciai Speciali Terni, 24 CIT at 1217, 120 F. Supp. 2d at 1106).
Sumec has not made a sufficient showing to warrant granting the еxtraordinary remedy it seeks. Plaintiff has not proven bad faith or prejudice by the Government. Sumec‘s motion asks essentially that the court reconsider its Rule 73.3 Motion for Accommodation. The court rejects this attempt and reiterates that this case concerns purely legal issues. The court denies Plaintiff‘s Motion to Strike.
II. Preliminary Injunction
Rule 65(a) of the Rules of this Court allows for the issuance of a preliminary injunction. USCIT R. 65(a). The court considers four factors when evaluating whether to grant a temporary restraining order or preliminary injunction. See Wind Tower Trade Coal. v. United States, 741 F.3d 89, 95 (Fed. Cir. 2014); see also Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). These factors are: (1) whether the party is likely to suffer irreparable harm in the absence of such injunction; (2) whether the party is likely to succeed on
With regard to the first factor, Plaintiff must show that it is likely to suffer irreparable harm absent a grant of injunctive relief. Winter, 555 U.S. at 20. Irreparable harm includes “a viable threat of serious harm which cannot be undone.” Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed. Cir. 1983) (internal citations omitted). An allegation of financial loss alone generally does not constitute irreparable harm if future money damages can provide adequate corrective relief. Sampson v. Murray, 415 U.S. 61, 90 (1974).
Plaintiff alleges that it will suffer irreparable harm due to financial hardship, citing only the amount of duties owed on the subject entries. See Pl.‘s Mot. Prelim. Inj. 8. Sumec does not specify any concrete, individualized harm, and does not proffer further evidence in support of its allegations. Plaintiff‘s perceived financial harm is hyрothetical and unsubstantiated. Sumec has failed to show irreparable harm to support its request for a preliminary injunction.
Sumec contends that it may suffer irreparable harm becausе the case law is unclear as to whether reliquidation of entries is permitted for actions brought under
CONCLUSION
For the aforementioned reasons, the court concludes that (1) Plaintiff has not fulfilled the requirements for its motion to strike, and (2) Plaintiff has not sufficiently met its burden of proof for the issuаnce of a preliminary injunction. Accordingly, upon consideration of Plaintiff‘s motions, and all other papers and proceedings in this action, it is hereby
ORDERED that Plaintiff‘s motion to strike is denied; and it is further
ORDERED that Plaintiff‘s motion for a preliminary injunction is denied; and it is further
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: August 30, 2018
New York, New York