Papierfabrik August Kohler SE v. United States , 949 F. Supp. 2d 1309 ( 2013 )

Slip Op. 13-141
UNITED STATES COURT OF INTERNATIONAL TRADE
PAPIERFABRIK AUGUST KOEHLER SE, :
:
Plaintiff, :
: Before: Nicholas Tsoucalas,
v. : Senior Judge
:
UNITED STATES, : Court No.: 13-00163
:
Defendant, :
:
and :
:
APPLETON PAPERS INC., :
:
Defendant-Intervenor. :
:
OPINION and ORDER
[Plaintiff’s Motion for Expedited Briefing and Consideration is
denied.]
Dated: November 14, 2013
F. Amanda DeBusk and Matthew R. Nicely, Hughes Hubbard & Reed
LLP, of Washington, DC, for plaintiff.
Joshua E. Kurland, Trial Attorney, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice, of Washington,
DC, for defendant. With him on the brief were Stuart F. Delery,
Assistant Attorney General, Jeanne E. Davidson, Director, and
Reginald T. Blades, Jr., Assistant Director. Of counsel on the
brief was Jessica M. Forton, Attorney, Office of the Chief Counsel
for Trade Enforcement and Compliance, U.S. Department of Commerce,
of Washington, DC.
Daniel L. Schneiderman and Gilbert B. Kaplan, King & Spalding
LLP, of Washington, DC, for defendant-intervenor.
Tsoucalas, Senior Judge: Before the court is plaintiff
Papierfabrik August Koehler SE’s (“Koehler”) Motion for Expedited
Briefing and Consideration, ECF No. 59 (Nov. 5, 2013) (“Mot. to
Expedite”). Plaintiff asks the court to expedite briefing and
Court No. 13-00163 Page 2
consideration of its Motion to Compel Commerce to Strike
Information Or, In the Alterative, Compel Commerce to Disclose the
Information, ECF No. 57 (Nov. 5, 2013) (“Mot. to Compel”).
Defendant U.S. Department of Commerce (“Commerce”) and defendant-
intervenor Appvion, Inc. (“Appvion”),1 oppose Koehler’s motion.
For the reasons stated below, the Mot. to Expedite is denied.
Koehler’s Mot. to Compel concerns certain bracketed and
double-bracketed proprietary information contained in allegations
Appvion made to Commerce during the administrative proceeding under
review in the instant case. See Mot. to Compel at 1. Appvion
alleged that Koehler undertook a transshipment scheme to conceal
home market sales, id. at 1–2, which Koehler admitted to during the
review. See Issues and Decision Memorandum for the Final Results
of the 2010-2011 Administrative Review on Lightweight Thermal Paper
from Germany at 7–8 (Apr. 10, 2013), A-428-840. Koehler contests
the bracketing of certain information contained in Appvion’s
allegations because Commerce imposed adverse facts available
(“AFA”) “[b]ased in significant part on those allegations.” Mot.
to Compel at 2.
Koehler moves to expedite briefing and consideration of
the Mot. to Compel so that it will be able to account for the
1
On May 13, 2013, Appleton Papers Inc. changed its name to
Appvion, Inc. See Letter to the Clerk of the Court, re:
Papierfabrik August Koehler SE v. United States, Ct. No. 13-00163,
ECF No. 25 (June 21, 2013).
Court No. 13-00163 Page 3
outcome of that motion in its motion for judgment on the agency
record. Mot. to Expedite at 1–2. According to Koehler, it does
not have sufficient time under the current briefing schedule
because its motion for judgment on the agency record is due
December 6, 2013. Id. Koehler insists that expedition will not
prejudice the opposing parties because the Mot. to Compel
“addresses a very narrow and discrete question.” Id. at 2.
This Court may expedite any “action that [it] determines,
based on motion and for good cause shown, warrants expedited
treatment.” USCIT R. 3(g)(5). Here, Koehler fails to demonstrate
that good cause “warrants expedited treatment” of the Mot. to
Compel. In its Mot. to Compel, Koehler argues that Commerce
violated its statutory and constitutional due process rights, as
well as Commerce’s own regulations, by allowing Appvion to bracket
and double-bracket certain information pertaining to the
transshipment scheme. See Mot. to Compel at 3. Koehler insists
that these issues are narrow, but they are new substantive
allegations that Koehler did not raise in its complaint,2 see
Compl. at 6–7, and opposing parties must have a full opportunity to
address them. Moreover, the contents of the bracketed information
2
In the “Procedural Background” of its complaint, Koehler
mentions that Appvion’s allegations were “liberally ‘double
bracketed,’” but it does not allege any constitutional, statutory,
or regulatory violations. See Compl. at 3, 6–7, ECF No. 6 (Apr.
24, 2013).
Court No. 13-00163 Page 4
are tangential to the claims Koehler raises in its complaint, as
Koehler admitted that it conducted the transshipment scheme Appvion
alleged. See I&D Memo at 7–14. Because it fails to demonstrate
that good cause warrants expedition, Koehler’s motion is denied.
See USCIT R. 3(g)(5).
ORDER
Upon consideration of plaintiff’s Motion for Expedited
Briefing and Consideration, the responses thereto, and all papers
and proceedings herein, and in accordance with the above, it is
hereby
ORDERED that plaintiff’s motion (ECF No. 59) is DENIED.
Responses to plaintiff’s Motion to Compel Commerce to Strike
Information Or, In the Alternative, Compel Commerce to Disclose the
Information (ECF No. 57) are to be filed on or before November 25,
2013.
/s/ Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Date: November 14, 2013
New York, New York