United States v. Am. Cas. Co. of Reading, Pa. , 2015 CIT 94 ( 2015 )


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  •                            Slip Op. 15-94
    UNITED STATES COURT OF INTERNATIONAL TRADE
    ________________________________
    UNITED STATES,                   :
    :
    Plaintiff,             :   Before: Nicholas Tsoucalas,
    :           Senior Judge
    v.                          :
    :   Consol. Court No.: 10-00119
    AMERICAN CASUALTY CO. OF         :
    READING PENNSYLVANIA, and RUPARI:    PUBLIC VERSION
    FOOD SERVICES, INC.              :
    :
    Defendants,            :
    _____________________            :
    OPINION AND ORDER
    [Plaintiff’s request for leave to amend the Complaint is granted
    in part and denied in part.    Defendant’s Motion to Dismiss is
    denied.]
    Dated:August 24, 2015
    Mikki Cottet, Senior Trial Counsel, Commercial Litigation Branch,
    Civil Division, U.S. Department of Justice, of Washington, DC,
    argued for Plaintiff.    With her on the brief were Benjamin C.
    Mizer, Acting Assistant Attorney General, Jeanne E. Davidson,
    Director, and Patricia M. McCarthy, Assistant Director, of
    Washington, DC. Of counsel on the brief was Brian J. Redar, Office
    of Associate Chief Counsel, U.S. Customs and Border Protection, of
    Long Beach, CA.
    Lawrence M. Friedman, Barnes Richardson & Colburn, of Chicago, IL,
    argued for Defendant. With him on the brief were Shama K. Patari,
    Barnes Richardson & Colburn, of Chicago, IL, and Peter A. Quinter,
    Gray Robinson, P.A., of Miami, FL.
    Tsoucalas,   Senior   Judge:   Plaintiff,   United   States
    Customs and Border Protection, (“Customs”) brought this action to
    recover civil penalties against Defendant, Rupari Food Services
    Consol. Court No. 10-00119                                           Page 2
    Inc., (“Rupari” or “Defendant”) 1 for violations of Section 592 of
    the Tariff Act of 1930, 19 U.S.C. § 1592(a)(2012) 2, and Defendant
    American     Casualty   Co.   of    Reading   Pennsylvania,      (“American
    Casualty”) to recover, under bonds, unpaid customs duties.           Rupari
    moves for dismissal of this action, post-answer, on the grounds
    that the Complaint fails to state a claim upon which relief can be
    granted and Customs failed to plead fraud with particularity.
    Customs    opposes   dismissal     and   requests   leave   to   amend   its
    Complaint.    For the following reasons, Customs’ request for leave
    to amend the Complaint is granted in part and denied in part, and
    Defendant’s Motion to Dismiss is denied.
    JURISDICTION AND STANDARD OF REVIEW
    The Court possesses jurisdiction to hear this action
    under section 201 of the Customs Courts Act of 1980, 28 U.S.C. §
    1582 (2012). 3
    A motion to dismiss for a failure to state a claim may
    be raised by motion under USCIT R. 12(c) after the pleadings are
    1   Plaintiff also filed an action against William Vincent “Rick”
    Stilwell (“Stilwell”) individually, however, all parties agreed to
    dismiss all claims as to him with prejudice and without costs,
    fees, and expenses on July 17, 2015.       Stipulation of Partial
    Dismissal, July 17, 2015, ECF No. 104.
    2    Further citations to the Tariff Act of 1930 are to the
    relevant portions of Title 19 of the U.S. Code, 2012 edition, and
    all applicable amendments thereto, unless otherwise noted.
    3    Further citations to the Customs Courts Act of 1980 are to
    the relevant portions of Title 28 of the U.S. Code, 2012 edition,
    and all applicable amendments thereto, unless otherwise noted.
    Consol. Court No. 10-00119                                        Page 3
    closed but early enough not to delay trial. USCIT R. 12 (h)(2)(B).
    A Rule 12(c) motion is reviewed under the same standard as a motion
    to dismiss under Rule 12(b)(6).     Koyo Corp. of U.S.A. v. United
    States, 37 CIT ____, 
    899 F. Supp. 2d 1367
    , 1370 (2013).               When
    reviewing a motion to dismiss for failure to state a claim, the
    court must accept as true the complaint’s undisputed factual
    allegations and should construe them in the light most favorable
    to the plaintiff. Bank of Guam v. United States, 
    578 F.3d 1318
    ,
    1326 (Fed. Cir. 2009) (quoting Cambridge v. United States, 
    558 F.3d 1331
    , 1335 (Fed. Cir. 2009).   To survive a motion to dismiss,
    a complaint must contain sufficient factual matter, accepted as
    true, to state a claim to relief that is plausible on its face.
    Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 570, 
    127 S. Ct. 1955
    ,
    1974, 
    167 L. Ed. 2d 929
    , 949 (2007). To be plausible, the complaint
    need not show a probability of plaintiff’s success, but it must
    evidence more than a mere possibility of a right to relief. 
    Id. at 556-59,
    127 S.Ct at 
    1965-66, 167 L. Ed. 2d at 940-41
    .
    BACKGROUND
    Rupari is a Florida corporation that purchased crawfish
    from abroad and sold it to restaurants in the United States. Compl.
    ¶¶ 3, 12, June 20, 2011, ECF No. 2; Pl.’s Opp’n to Mot. to Dismiss
    (“Pl.’s Br.”) Purchase Agreement Ex. 10, at 13, Mar. 7, 1997, ECF
    No. 94-6.      Rupari’s seafood sales team consisted of Mr. Larry
    Floyd   (“Floyd”),   Vice   President   of   Rupari’s   Seafood   Sales
    Consol. Court No. 10-00119                                        Page 4
    Division, and Stilwell, a commissioned seafood salesman. Pl.’s Br.
    Tr. of Dep. of William Vincent Stilwell (“Stilwell Dep.”) Ex. 1,
    at 13-14, Apr. 3, 2013, ECF No. 94-1;        Pl.’s Br. Tr. of Dep. of
    Rupari Food Services Inc. (“Rupari Dep.”) Ex. 2, at 15-16, 17,
    Apr. 4, 2013, ECF No. 94-2.
    In 1997 and 1998, Rupari sold crawfish to members of the
    Popeye’s Operator’s Purchasing Cooperative Association (“POPCA”).
    Mr. Richard Porter (“Porter”), the POPCA director of purchasing
    and distribution, communicated with Rupari through Floyd regarding
    the sale of crawfish. Pl.’s Br. Decl. of Richard L. Porter (“Porter
    Decl.”) Ex. 10, at ¶¶ 6, 7, Mar. 16, 2014, ECF No. 94-6.
    On March 7, 1997, Porter and Floyd signed a Purchase
    Agreement wherein Rupari would sell POPCA 148,000 lbs. of “Chinese
    [c]rawfish [t]ail [m]eat.”     Pl.’s Br. Purchase Agreement Ex. 10,
    at 13, Mar. 7, 1997.   The agreement also stated that a formal POPCA
    supply agreement would be sent shortly thereafter. 
    Id. Floyd and
    Porter consummated the formal POPCA supply agreement on June 8,
    1997.   
    Id. at 14.
    In August 1997, the United States Department of Commerce
    (“Commerce”) conducted an antidumping investigation concerning
    crawfish tail meat from China.           Commerce published the final
    determination   of   its   antidumping   investigation   of   freshwater
    crawfish tail meat from China on August 1, 1997. Notice of Final
    Determination of Sales at Less than Fair Value: Freshwater Crawfish
    Consol. Court No. 10-00119                                           Page 5
    Tail Meat From the People’s Republic of China, 62 Fed. Reg. 41,347
    (Aug. 1, 1997) (subsequently amended to correct ministerial errors
    at 62 Fed. Reg. 48,218 (Dep’t of Commerce Sept. 15, 1997) (“Final
    Determination”).
    Yupeng Fisheries Ltd., (“Yupeng”) a Chinese producer and
    importer of crawfish tail meat, was among the firms investigated
    by Commerce.     
    Id. Yupeng did
    not receive a separate rate, and its
    crawfish tail meat exports were subject to the China-wide rate of
    201.63 percent.        
    Id. at 41,358.
        Whole crawfish, however, were
    excluded from the scope of the antidumping duty investigation.
    
    Id. at 41,347.
        From 1996 to 1998, Yupeng sold Rupari whole cooked
    frozen crawfish and cooked frozen crawfish tail meat. Pl.’s Br.
    Stilwell Dep. Ex. 1, at 17-18.
    Floyd and Stilwell mainly communicated with Mr. Tian
    Wei, a Yupeng salesman, but also communicated with Mr. Wang Yon
    Min, Yupeng’s owner, (“Wang”), regarding the sale of crawfish to
    Rupari. 
    Id. at 17,
    21.
    On October 17, 1997, POPCA sent Floyd and Rupari a letter
    confirming that Popeye’s would purchase 1,500 cases of crawfish.
    Pl.’s   Br.     Crawfish   Confirmation   Letter   from   James    Brailey,
    Purchasing Manager, POPCA, to Floyd Ex. 10, at 30, Oct. 17, 1997.
    In     November   1997,   Wang,    Yupeng’s    owner,    created
    Seamaster Trading Company Ltd. (“Seamaster”) which was located in
    Thailand. Compl. at ¶13. Yupeng shipped crawfish tail meat from
    Consol. Court No. 10-00119                                            Page 6
    China to Seamaster in Thailand. Pl.’s Br. Packing List, Bill of
    Lading, Invoice, Manifest or Freight List Ex. 6, at 1-12, ECF No.
    94-5.    Rupari was aware that Wang created Seamaster and was the
    principal owner of both Yupeng and Seamaster. Pl.’s Br. Rupari
    Dep. Ex. 2, at 5.
    Wang approached Mr. Somchai Sriviroj, (“Sriviroj”) the
    owner and managing director of Sea Bonanza Foods Company, Ltd.,
    (“Sea Bonanza”) a fish processing company in Thailand, and asked
    if Sea Bonanza could repackage frozen crawfish tail meat. Pl.’s
    Br. Tr. of Dep. of Sea Bonanza Foods Company, Ltd. Ex. 4, at 8,
    July 8-9, 2013, ECF No. 94-3.
    On November 8, 1997, Seamaster entered into a contract
    with Sea Bonanza wherein Seamaster would ship crawfish tail meat
    from    China   to   Thailand,   and   Sea   Bonanza   would   repackage the
    crawfish tail meat in exchange for a processing fee. Pl.’s Br.
    Contract between Sea Master and Sea Bonanza Ex. 5, at 2, Nov. 8,
    1997, ECF No. 94-4.
    In January and April 1998, Yupeng shipped from China to
    Seamaster, in Thailand, product invoiced as “frozen crawfish.”
    Pl.’s Br. Invoice Ex. 6, at 1, 3, Jan. 8, 1998, ECF No. 94-5.
    Sea Bonanza repacked the frozen crawfish tail meat for
    Seamaster and labelled the meat a “product of Thailand.” Pl.’s Br.
    Tr. of Dep. of Sea Bonanza Foods Company, Ltd.             Ex. 4, at 8, 22.
    According to the Agricultural Affairs Office at the American
    Consol. Court No. 10-00119                                               Page 7
    Embassy   in    Bangkok,    crawfish   is   not   harvested   in   Thailand;
    moreover, Sea Bonanza never processed live crawfish.               
    Id. at 7,
    12; see also Pl.’s Br. Packing List Ex. 6, at 1, Apr. 18, 1998;
    Pl.’s Br. Facsimile from the Agricultural Affairs Office at the
    American Embassy in Bangkok, Thailand to Roy Johnson, Louisiana
    Dept. of Agriculture Ex. 8, at 1, Aug. 5, 1998, ECF No. 94-5.
    Rupari   assisted    Seamaster    with   obtaining     a   customs
    broker and Seamaster became a non-resident importer of crawfish to
    the United States. Pl.’s Br. Rupari Dep. Ex. 2, at 4; Pl.’s Br.
    Entry Summary Ex. 11A, at 1-42, Mar. 13, 1998, ECF No. 94-7.
    Rupari stopped purchasing crawfish tail meat directly from Yupeng
    and began purchasing crawfish tail meat from Seamaster.            See Pl.’s
    Br. Stilwell Dep. Ex. 1, at 18, 20.           Rupari had never purchased
    crawfish from a source in Thailand prior to purchasing crawfish
    tail meat from Seamaster.       
    Id. at 20.
    On February 24, 1998, Porter sent a letter to Caro
    Produce regarding POPCA’s Crawfish Etouffe promotion beginning
    March 9, 1998, and ending April 11, 1998. Pl.’s Br. Letter from
    Porter to Caro Produce-Angel Homan, Ex. 10, at 36, Feb. 24, 1998.
    The letter recited that POPCA ordered 1,200 cases of crawfish in
    24.1 lb. bags from Rupari. 
    Id. On March
    13, 1998, Seamaster filed a consumption entry
    describing the imported merchandise as 1,900 cartons of frozen
    crawfish,      classified   under   U.S.     Harmonized   Tariff       Schedule
    Consol. Court No. 10-00119                                                       Page 8
    (“HTSUS”) 0306.19.0010, free of duty, and marked as a product of
    Thailand. Pl.’s Br. Entry Summary Ex. 11A, at 1.
    American Casualty issued customs bonds to Seamaster for
    the importation of crawfish tail meat. Compl. At ¶6, Customs Bonds
    Ex. A, at 2-5, Apr. 15, 1998, ECF No. 2-1.                   American Casualty, as
    surety,    guaranteed      payment      for   any    duty,    tax,     or   charge,    or
    compliance with law or regulation, as a result of Seamaster’s
    imports. 
    Id. On April
    18, 1998, Seamaster filed three consumption
    entries that described the imported merchandise as 1,750 cartons
    of cooked crawfish meat, classified under HTSUS 1605.40.1000, free
    of duty, and marked as products of Thailand. Pl.’s Br. Entry
    Summary Ex. 11A, at 10.               Seamaster did not identify any of the
    entries as being subject to antidumping orders as required by 19
    C.F.R. § 141.61(c). See 
    id. Rupari was
    listed as the notifying
    party   on      certificates     of    origin   that    accompanied         these   four
    entries. Pl.’s Br. Certificates of Origin Ex. 11A, at 7, 15, 26,
    37.       The    entry    summaries,       entry     documents,        invoices,      and
    certificates of origin all stated that the crawfish meat originated
    in Thailand. 
    Id. at 1-42.
    Seamaster,     as    the    importer      of    record,    entered     four
    containers of crawfish tail meat into the commerce of the United
    States through the Los Angeles/Long Beach Seaport by means of
    documents       filed    with    Customs      that    claimed     the       merchandise
    Consol. Court No. 10-00119                                  Page 9
    originated in Thailand. Compl. at ¶17. The four entries were
    released for consumption and Rupari sold some or all of the entries
    to POPCA. Pl.’s Br. Porter Decl. Ex. 10, at ¶10.   All four entries
    were subject to a 201.63 percent antidumping duty margin under the
    antidumping order. Final Determination, 62 Fed. Reg. at 41,358.
    Seamaster did not classify the entries as subject to antidumping
    duties, nor did it remit any amount of the applicable duties to
    Customs. Compl. at ¶18.
    On May 4, 1998, Porter had a telephone conversation with
    Floyd, Rupari’s Vice President of seafood sales, regarding the
    alleged crawfish tail meat purchased from Rupari and upcoming
    shipments of frozen crawfish tail meat. Pl.’s Br. Ex. 10, at 3-4,
    Porter Decl. at ¶10. According to Porter:
    During that conversation, I asked Larry
    [Floyd] how it was that Rupari could sell its
    Chinese crawfish tail meat so cheaply. I also
    commented that Rupari’s crawfish was cheaper
    than all of the other Chinese crawfish tail
    meat being sold in the United States at that
    time.    Larry responded that they, which I
    understood to be Rupari, “can get it in where
    it would not be known as Chinese crawfish.” I
    asked Larry how and he explained that the
    Chinese crawfish tail meat was shipped to
    Thailand where it was “processed.”     He said
    that the country of origin could be the place
    where the crawfish is packed. Larry also used
    the word “tariff,” stating that Rupari’s
    crawfish would not have to pay the same amount
    in tariffs. I responded, “Is that on the up-
    and-up?”     I was uncomfortable with this
    approach and shared my concern with Larry.
    
    Id. Consol. Court
    No. 10-00119                                         Page 10
    Also on May 4, 1998, Floyd sent Porter a facsimile on
    Rupari letterhead, in which he wrote the following:
    As per our conversation on the telephone
    earlier concerning cooked peeled crawfish meat
    from Thialand, [sic] this product was cooked
    in China and sent to Thialand [sic] in the
    whole round and totally processed in Thialand
    [sic] and packed under the Seamaster lable
    [sic]. I really don’t understand what all the
    comotion [sic] is all about because we could
    bring in the whole cooked product into the
    United States and peel and pack it here and it
    would become product of the U.S.A.
    Pl.’s Br. Fax from Floyd to Porter Ex. 20, at 1, May 4, 1998, ECF.
    No. 94-11.
    Seamaster, as the importer of record, attempted to enter
    five more entries of crawfish tail meat into the United States
    between approximately June 13, 1998, and June 20, 1998. Pl.’s Br.
    Entry/Immediate Delivery Forms, Certificates of Origin, Bills of
    Lading, Invoices, Ex. 11B, at 1-28 ECF No. 94-8.                 Seamaster
    classified the crawfish tail meat in these five entries as duty
    free under 1605.40.1000 HTSUS.        
    Id. Seamaster labeled
    all five
    entries as products of Thailand. 
    Id. The crawfish
    tail meat was
    subject   to   antidumping   duties   of    201.63   percent,   because   it
    originated in China, but Seamaster did not classify the merchandise
    properly. Id.; see also Final Determination, 62 Fed. Reg. at
    41,358. Customs examined and seized the five entries of crawfish
    tail meat under 19 U.S.C. § 1595a(c)(2)(E), because the cartons
    Consol. Court No. 10-00119                                          Page 11
    were intentionally marked as products of Thailand in violation of
    19 U.S.C. § 1304. Compl. at ¶21.
    On   June   26,    1998,    Customs   issued   a   request    for
    information to Seamaster, as importer of record, asking them to
    substantiate the claimed Thai origin of the five seized entries,
    and asking for an explanation of Seamaster’s relationships with
    Rupari and Sea Bonanza. Pl.’s Br. U.S. Customs Service Request for
    Information, Ex. 13, at 1, June 26, 1998, ECF No. 94-10.
    On   June    29,    1998,     Customs   commenced     a      fraud
    investigation against Rupari for the possible circumvention of
    antidumping duties.    Pl.’s Br. Tr. of Dep. of C. Vernon Francis,
    Ex. 12, at 12, Sept. 24, 2013, ECF No. 94-9.
    On July 1, 1998, Rupari, through its employee, Stilwell,
    filed a letter with Customs on behalf of Seamaster, the importer
    of record, wishing to clarify the origin of the crawfish meat.
    Pl.’s Br. Letter from Stilwell to Mr. David Shaw, US Customs
    Service, Ex. 15, at 1, July 1, 1998, ECF No. 94-11.              Stilwell
    stated in the letter that the crawfish tail meat in the five seized
    entries was “cooked, peeled, and processed” by Sea Bonanza at its
    plant in Thailand.    
    Id. On July
    6, 1998, Customs issued a second request for
    information to Seamaster asking for records from Sea Bonanza to
    substantiate the facts in the letter referenced claiming that the
    crawfish tail meat was processed in Thailand from raw crawfish
    Consol. Court No. 10-00119                                          Page 12
    harvested in Thailand. Pl.’s Br. Second Request for Information
    Ex. 13, at 2-4.
    On July 10, 1998, Rupari, through its employee Stilwell,
    filed documents in response to this second request for information.
    Compl. at ¶25. One of those documents was a letter written by
    Seamaster    that   authorized     Rupari   to     act    as   Seamaster’s
    representative in all dealings with Customs related to the release
    of the seized entries of Chinese crawfish tail meat.             Pl.’s Br.
    Letter of Authorization from Seamaster to U.S. Customs, Ex. 23, at
    46, July 9, 1998.
    On July 13, 1998, Customs issued a third request for
    information to Seamaster again asking for further substantiation
    of the claim that the crawfish originated in Thailand.           Pl.’s Br.
    Third Request for Information Ex. 13, at 5, July 13, 1998.
    On July 13, 1998, Rupari, through its employee Stilwell,
    filed a series of documents with Customs. Compl. at ¶27. Among
    those   documents   was   a   purported   letter   from    Mahyam   Tingham
    Fisheries Co. Ltd. stating that it cultivated crawfish in Bangkok,
    Thailand, which it sold to Sea Bonanza, complete with invoices for
    the sale of live crawfish. Pl.’s Br. Letter of Explanation from
    Mahyam, Ex. 15, at 2-5, July 10, 1998.           The Bureau of Business
    Information of the Government Service Division in Thailand has
    confirmed that they failed to find any business registration for
    the name “Mahyam Tingham Fisheries Co., Ltd.”             Pl.’s Br. Letter
    Consol. Court No. 10-00119                                 Page 13
    from the Bureau of Business Information of Thailand to Ms. Barry
    Tang, Ex. 18, at 1, May 10, 2013.
    There was also a letter from Sea Bonanza stating that it
    purchased raw crawfish from Mahyam that it processed into tail
    meat for sale to Seamaster, which Seamaster then imported into the
    United States.   Pl.’s Br. Letter of Confirmation from Sea Bonanza,
    Ex. 23, at 47, July 10, 1998.
    [[
    Consol. Court No. 10-00119                                         Page 14
    ]]
    On July 25, 1998, Wang, the owner of Yupeng, sent a
    facsimile to Rupari and Stilwell which stated that Yupeng did not
    have the money to pay the ocean freight to ship crawfish to
    Thailand; however, Yupeng would fulfill Rupari’s order of “whole
    crawfish” which would be mixed with “ten tons of crawfish meat.”
    Pl.’s Br. Facsimile from Wang to Rupari Ex. 16, at 1, July 25,
    1998, ECF No. 94-11.
    On August 5, 1998, the Agricultural Affairs Office of
    the American Embassy in Thailand confirmed that there was no
    commercial     production   of   indigenous      freshwater   crawfish    in
    Thailand. Pl.’s Br. Facsimile from Agricultural Affairs Office,
    American Embassy, Bangkok, Thailand, to Roy Johnson, Louisiana
    Dept. of Agriculture, Ex. 8, at 1, Aug. 5, 1998.
    On April 9, 2001, Customs sent Rupari and Stilwell a
    Pre-penalty    Notice   which    set    the   tentative   determination   of
    culpability at fraud, but also noted that “[i]nasmuch as the
    Government may plead in the alternative in any de novo proceeding
    before the Court of International Trade, Customs alternatively
    alleges that the violation in question occurred as a result of
    negligence or gross negligence.”          Pl.’s Br. Pre-penalty Notice,
    Consol. Court No. 10-00119                                             Page 15
    Ex. 19, at 2, Apr. 9, 2001, ECF No. 94-11.          On November 14, 2001,
    Customs issued Rupari and Stilwell a Penalty Notice which included
    the same language as the Pre-penalty notice mentioned above. Pl.’s
    Br. Penalty Notice, Ex. 24, at 18-20, Nov. 14, 2001, ECF No. 94-
    13.
    On April 7, 2010, Customs filed a complaint against
    American    Casualty    claiming    that   it   owed   the    United    States
    $1,279,648.83 plus statutory interest for unpaid customs duties
    under bonds pursuant to 19 U.S.C. § § 1505, 1592(d), 1505(c), and
    580.   Compl. at ¶1, April 7, 2010, ECF No. 2.
    On June 20, 2011, Customs filed a Complaint against
    Rupari for violations of 19 U.S.C. § 1592 (a). Compl. ¶1, June 20,
    2011, ECF No. 2.       The Complaint alleged that Defendant attempted
    to enter five containers of Chinese crawfish tail meat by means of
    documents falsely claiming that the crawfish tail meat originated
    in Thailand. 
    Id. at ¶8.
         Customs sought the domestic value of the
    merchandise Rupari attempted to enter into the United States which
    was $2,784,636.18, or in the alternative, the maximum amount for
    grossly negligent or negligent violations of 19 U.S.C. § 1592.
    
    Id. at ¶52.
    On December 22, 2011, this Court ordered that the case
    against    American    Casualty    be   consolidated   with    that    against
    Rupari. Order, Dec. 22, 2011, ECF No. 22.
    Consol. Court No. 10-00119                                               Page 16
    On May 13, 2013, Stilwell died.         Def.’s Mot. to Dismiss
    Public Version, Death Certificate Ex. 5, at 1, July 19, 2013, ECF
    No. 75-5.    Additionally, Floyd died, however, his date of death is
    not known by the court.        On January 22, 2014, Customs conducted
    the deposition of a confidential informant who recounted an alleged
    conversation with Stilwell in which Stilwell stated that [[
    ]]     Pl.’s
    Br. Conf. Dep. of Confidential Informant Ex., 1 at 7, ECF No. 80.
    Subsequently,   Defendant    filed     a   motion   to    dismiss
    arguing     that   Customs   failed   to   properly       allege   fraud    with
    particularity and Customs failed to exhaust its administrative
    remedies for Counts II (gross negligence) and III (negligence).
    Def.’s Br. at 4-5.
    Customs opposes Defendant’s Motion to Dismiss, and it
    also requests leave to amend its Complaint.           Pl.’s Br. at 13.
    DISCUSSION
    There are three issues that the court must analyze in
    addressing Defendant’s Motion to Dismiss: (1) whether the court
    should allow Customs to amend its Complaint; (2) whether Customs
    alleged fraud with particularity; (3) whether Customs failed to
    exhaust its administrative remedies with respect to negligence and
    gross negligence.
    Consol. Court No. 10-00119                                      Page 17
    1. Whether the   court   should   allow   Customs   to   amend   its
    Complaint.
    Customs seeks leave to amend its Complaint, reasoning
    that Defendant would not suffer any prejudice, because this action
    has advanced significantly beyond discovery, Defendant answered
    the complaint, and Defendant waited until the close of discovery
    to file its Motion to Dismiss.    Pl.’s Br. at 13-14.     Customs also
    notes that this is its first request to amend the complaint.          
    Id. Defendant opposes
    Customs’ request to amend, because it
    argues that waiting years after the Complaint was filed to amend
    by adding new information constitutes undue delay that prejudices
    their case. Def.’s Reply to Pl.’s Resp. to Def.’s Mot. to Dismiss
    Confidential Version at 5-6, Mar. 29, 2015, ECF No. 98 (“Def.’s
    Reply”).
    Rule 15 of the Rules of the U.S. Court of International
    Trade provides that “[t]he court should freely give leave” to amend
    a pleading “when justice so requires.” USCIT R. 15(a)(2).         While
    Rule 15 requires that leave to amend be freely given, the Court
    must also consider whether there was undue delay, bad faith or
    dilatory motive on the part of the Plaintiff, undue prejudice to
    the opposing party, a repeated failure to cure deficiencies by
    amendments previously allowed, and futility of amendment.         Foman
    v. Davis, 
    371 U.S. 178
    , 182, 
    83 S. Ct. 227
    , 230, 
    9 L. Ed. 2d 222
    , 226
    (1962).
    Consol. Court No. 10-00119                                                 Page 18
    The view that delay becomes undue when it prejudices
    the opposing party is generally accepted. Ford Motor Co. v. United
    States, 
    19 CIT 946
    , 956, 
    896 F. Supp. 1224
    , 1231 (1995) (citing
    United States v. Mex. Feed & Seed Co., 
    980 F.2d 478
    , 485 (8th Cir.
    1992)).     In turn, to demonstrate prejudice, Defendant “must show
    that it was unfairly disadvantaged or deprived of the opportunity
    to present facts or evidence which it would have offered had the
    amendment been timely.”        
    Id. (quoting Cuffy
    v. Getty Ref. & Mktg.
    Co., 
    648 F. Supp. 802
    , 806 (D.Del. 1986)).
    First,    Defendant     argues   that       the   inclusion    of    the
    Declaration of Porter would prejudice it, because the Declaration
    details a phone conversation between Porter and Floyd, in which
    Floyd allegedly stated that the crawfish tail meat was from China.
    Def.’s Reply at 7.       Floyd is now deceased, and Defendant contends
    that   as   a   result   of   his   death,   it   has    been   deprived    of    an
    opportunity to challenge Porter’s statements.                 
    Id. Although Floyd
    is deceased, Defendant argues that the
    May 4, 1998 fax from Floyd to Porter, occurring the same day as
    the phone call, shows that the conversation was limited to whole
    crawfish which are not within the scope of the antidumping order.
    Specifically, Defendant points out that the fax refers to crawfish
    “in the whole round” and “whole cooked product.”                
    Id. at 8.
    Defendant has not been deprived of an opportunity to
    challenge Porter’s statements, because the contemporaneous fax to
    Consol. Court No. 10-00119                                  Page 19
    Porter could show that the conversation was limited to whole
    crawfish which are not within the scope of the antidumping order.
    
    Id. Defendant is
    not prejudiced by the inclusion of Porter’s
    Declaration or the fax, because it has not been deprived of an
    opportunity to challenge Porter’s statements.   See 
    Ford, 19 CIT at 956
    , 896 F. Supp. at 1231. The court will allow Customs to amend
    its Complaint to include information relative to the Declaration
    of Porter.
    Defendant also argues that amending the Complaint to
    include additional facts to support Count I, fraud, would be
    futile. Def.’s Reply at 5. Specifically, Defendants argue that
    including facts relating to the facsimile from Wang, Yupeng and
    Seamaster’s owner, to Rupari and Stilwell would not survive a
    motion to dismiss, because the government’s conclusion that the
    goods were transshipped to the U.S. from China and that Rupari and
    Stilwell were aware of the transshipment does not logically flow
    from the facsimile. 
    Id. at 8.
    If an amendment would not survive a motion to dismiss
    pursuant to USCIT Rule 12(b)(6), it is deemed futile.        United
    States v. Active Frontier Int’l, Inc., 37 CIT ___, Slip Op. 13-8
    (Jan. 16, 2013).   To survive a motion to dismiss, a complaint must
    contain sufficient factual matter, accepted as true, to state a
    claim to relief that is plausible on its face. 
    Twombly, 550 U.S. at 570
    , 127 S. Ct. at 
    1974, 167 L. Ed. 2d at 949
    .   To be plausible,
    Consol. Court No. 10-00119                                            Page 20
    the complaint need not show a probability of plaintiff’s success,
    but it must evidence more than a mere possibility of a right to
    relief. 
    Id. at 556-57,
    127 S. Ct. at 
    1965-66, 167 L. Ed. 2d at 940-41
    .
    The court finds that amending the Complaint to include
    the information discussed in the facsimile would not be futile,
    because the amendment would survive a motion to dismiss. See Active
    Frontier Int’l, Inc., 37 CIT ___, Slip Op. 13-8 (Jan. 16, 2013).
    The amendment     would   survive   a   motion   to   dismiss,    because   it
    evidences a more than a mere possibility of a right to relief, as
    one could reasonably interpret the fax to show that Rupari was
    aware of the transshipment of crawfish tail meat.                See 
    Twombly, 550 U.S. at 570
    , 127 S. Ct. at 
    1974, 167 L. Ed. 2d at 949
    ; see
    also Pl.’s Br. Facsimile from Wang to Rupari Ex. 16, at 1.
    Next,    Defendant   argues     that    the   inclusion     of    the
    deposition testimony of a confidential informant who recalled a
    verbal, unrecorded, conversation with the now deceased Stilwell
    will prejudice its case.       Def.’s Reply at 10. Customs seeks to
    amend the Complaint to include the deposition testimony, because
    [[
    ]]
    The Defendant has been deprived of an opportunity to present
    Consol. Court No. 10-00119                                           Page 21
    evidence it would have offered had the amendment been timely,
    specifically    Stilwell’s    testimony,   to    rebut    the   confidential
    informant’s account of the purported conversation with Stilwell,
    because Stilwell died on May 13, 2013, and the deposition of the
    confidential informant occurred afterwards on January 22, 2014.
    See 
    Ford, 19 CIT at 956
    , 896 F.Supp. at 1231; Def.’s Br. Stilwell
    Death Certificate Ex. 5 at 1, ECF No. 75-5; Pl.’s Br. Dep. of Conf.
    Informant Ex. 1, at 1.      Consequently, inclusion of this deposition
    will prejudice Defendant, and the court will not permit Customs to
    amend its complaint to add this information.
    2. Customs alleged fraud with particularity.
    The Defendant argues that Customs’ Complaint fails to
    contain sufficient underlying facts creating a plausible inference
    that Rupari knew the statements contained in letters and other
    documents to Customs were false and that they intended to deceive
    Customs. Def.’s Br. at 5-6.        The Court disagrees.
    Rule 9(b) of the Rules of the Court of International
    Trade   requires   that     Customs   “state    with     particularity   the
    circumstances constituting fraud or mistake.               Malice, intent,
    knowledge, and other conditions of a person’s mind may be alleged
    generally.”    USCIT R. 9(b). Even though knowledge and intent may
    be   alleged   generally,    the   pleadings    must   “allege    sufficient
    underlying facts from which a court may reasonably infer that party
    acted with the requisite state of mind.”           Exergen Corp. v. Wal-
    Consol. Court No. 10-00119                                 Page 22
    Mart Stores, Inc., 
    575 F.3d 1312
    , 1327 (Fed. Cir. 2009). “A fraud
    pleading must include informational elements of ‘who, what, when,
    where, and how: the first paragraph of any newspaper story.’”
    United States v. Islip, 
    22 CIT 852
    , 869, 
    18 F. Supp. 2d 1047
    , 1063
    (1998) (quoting DiLeo v. Ernst & Young, 
    901 F.2d 624
    , 627 (7th
    Cir. 1990)).   “Most courts have required the claimant to allege at
    a minimum the identity of the person who made the fraudulent
    statement; the time, place, and content of the misrepresentation;
    the resulting injury; and the method by which the misrepresentation
    was communicated.” 
    Islip, 22 CIT at 869
    , 18 F.Supp.2d at 1063
    (citing 2 Moore's Federal Practice § 9.03, at 9–18 n.12 (3d
    ed.1998)).
    Defendant contends that the bare fact that Rupari had
    done business with Seamaster’s Chinese parent company, Yupeng,
    prior to the imposition of antidumping duties does not permit the
    inference that Rupari knew that the crawfish originated in China.
    Def.’s Br. at 7.   Defendant is correct that this fact alone does
    not permit the inference that Rupari definitively knew the origin
    of the crawfish to be China, but this individual fact cannot be
    viewed in a vacuum as suggested by Defendant.    Rather, this fact
    must be viewed in light of the other facts mentioned in the
    Complaint, as discussed below.
    [[
    Consol. Court No. 10-00119                                 Page 23
    ]]
    Customs argues that the Declaration of Porter shows that
    Rupari knew that the crawfish tail meat was from China, and thus
    Customs pled fraud and intent with particularity. Pl.’s Br. 17-
    18.   In his Declaration, Porter recounts a conversation on May 4,
    1998, with Floyd, in which Floyd allegedly told him that Rupari’s
    “Chinese crawfish tail meat” was cheaper than all of the others,
    because the meat was shipped to Thailand where it was processed
    and then it “would not be known as Chinese crawfish.” Pl.’s Br.
    Porter Decl.   Ex. 10, at ¶10.
    Consol. Court No. 10-00119                                               Page 24
    In contrast, Defendant claims that the facsimile from
    Floyd   to   Porter   on   May   4,    1998,   sent   the   same   day   as   the
    conversation, shows that the conversation was limited to whole
    crawfish, which is not within the scope of the antidumping order,
    as the fax referred to crawfish “in the whole round” and as “whole
    cooked product.” Pl.’s Br. Fax from Floyd to Porter Ex. 20, at 1.
    Nevertheless, given that POPCA and Rupari previously
    signed a contract for the supply of “Chinese [c]rawfish [t]ail
    [m]eat,” and that the court construes the facts in the light most
    favorable to the plaintiff in reviewing a motion to dismiss, the
    court finds that Customs pled knowledge and intent with enough
    particularity that its fraud claim survives the Motion to Dismiss.
    See Pl.’s Br. Purchase Agreement between POPCA and Rupari, Ex. 10,
    at 13; see also Bank of 
    Guam, 578 F.3d at 1326
    .
    Moreover,     Plaintiff    pled   fraud    with   particularity,
    because the complaint detailed the identity of the person who made
    the fraudulent statement; the time, place, and content of the
    misrepresentation; the resulting injury; and the method by which
    the misrepresentation was communicated.           See 
    Islip, 22 CIT at 869
    ,
    18 F.Supp.2d at 1063.         Specifically, the complaint alleged that
    Stilwell, an employee of Rupari, fraudulently stated in a letter
    dated July 1, 1998, to Customs on behalf of Seamaster, the importer
    of record, that the crawfish tail meat in the five seized entries
    was processed and packed by Sea Bonanza in Thailand from raw
    Consol. Court No. 10-00119                                        Page 25
    crawfish harvested by Mahyam in Thailand. Compl. ¶23; see 
    id. Customs further
    alleged that these statements had the potential to
    influence its assessment of antidumping duties. Compl. at ¶35.
    Moreover, the complaint alleged that Rupari, through its employee
    Stilwell, filed on July 13, 1998, a series of documents with
    Customs   which   it   knew   to   contain   false   representations   that
    Thailand was the country of origin of the crawfish tail meat. 
    Id. at ¶27.
    The documents included the following: a purported letter
    from Mahyam stating that it cultivated live crawfish which it sold
    to Sea Bonanza, invoices for the sale of live crawfish, and a
    letter purportedly from Sea Bonanza stating that it purchased
    crawfish from Mahyam that it processed into tail meat for sale to
    Seamaster. 
    Id. Finally, Defendant
    contends that Customs failed to plead
    fraud with particularity, because the fax from Yupeng to Rupari
    does not demonstrate that Rupari knew that the crawfish tail meat
    was from China at the time it responded to Customs.         Def.’s Br. at
    8.   The fax was sent on July 25, 1998, after Stilwell made
    representations and submitted documentation to Customs on July 1,
    10, and 13, 1998. Pl.’s Br. Facsimile from Wang to Rupari Ex. 16.
    Although the fax, in and of itself, may not show that
    Rupari knew that the statements were false at the time they were
    made to Customs, as the statements occurred before the fax, the
    fax could plausibly show that Rupari discovered that its statements
    Consol. Court No. 10-00119                                  Page 26
    were false after it sent its last response to Customs on July 13,
    1998, and that it failed to inform Customs that its previous
    statements, made just days before, were untrue.    Thus, Plaintiff
    pled fraud with enough particularity to survive Defendant’s motion
    to dismiss.
    3. Exhaustion of Administrative Remedies
    28 U.S.C. § 2637(d) provides that “[i]n any civil action
    not specified in this section, the Court of International Trade
    shall, where appropriate, require the exhaustion of administrative
    remedies.” 28 U.S.C. § 2637(d).    If a new level of culpability is
    first introduced in Court and not at the administrative level, the
    party against whom the claim is alleged has been prevented from
    seeking mitigation of the monetary penalty at the administrative
    level as contemplated by 19 U.S.C. § 1592(b) and 19 U.S.C. § 1618.
    United States v. Optrex, 
    29 CIT 1494
    , 1500 (2005) (not reported in
    federal supplement); see also Def.’s Br. at 12.
    Defendants charge that Commerce failed to exhaust its
    administrative remedies for Count II, gross negligence, and Count
    III, negligence, because, although the penalty letters indicated
    that Customs alleged negligent and gross negligent violations in
    the alternative, Customs did not pursue such claims.    Def.’s Br.
    at 11, 14. The court disagrees.
    Defendants rely on Optrex to support their position.
    See 
    Optrex, 29 CIT at 1500
    .       In Optrex, Customs issued a pre-
    Consol. Court No. 10-00119                                          Page 27
    penalty notice which alleged that Optrex was negligent in providing
    insufficient information in the entry documents to enable Customs
    to determine the correct classification of its products. 
    Id. at 1495.
      The    final    penalty   claim   against   Optrex   was   based   on
    negligence. 
    Id. Customs then
    filed suit on a negligence theory.
    
    Id. at 1495-96.
           Subsequently, Customs sought leave of the court
    to amend its complaint to include penalties for fraud and gross
    negligence. 
    Id. at 1496.
    The court in Optrex denied Customs’ motion
    reasoning that “the statute was designed to give an importer an
    opportunity to fully resolve a penalty proceeding before Customs,
    before any action in this Court.” 
    Id. at 1500-03.
    In other words,
    Optrex was denied an opportunity to resolve the fraud and gross
    negligence claims before the action was filed in this Court, as
    these claims were not mentioned in the pre-penalty and penalty
    notices.      
    Id. at 1495-1503.
    The facts in the instant case are not analogous to those
    in Optrex. See 
    id. Unlike in
    Optrex, here, Customs alleged
    negligence and gross negligence in the alternative in both the
    pre-penalty and penalty notices:
    Inasmuch as the Government may plead in the
    alternative in any de novo proceeding before
    the Court of International Trade, Customs
    alternatively alleges that the violation in
    question occurred as a result of negligence or
    gross negligence. (Emphasis added).
    Consol. Court No. 10-00119                                               Page 28
    Pl.’s Br. Pre-penalty Notice, Ex. 19, at 2; Pl.’s Br. Penalty
    Notice, Ex. 24, at 18-20.         Here, by listing the negligence and
    gross negligence claims in the notices, Customs put the Defendant
    on notice that they were pursuing penalties for negligence and
    gross negligence in the event they could not prove fraud.                Customs
    thereby presented Defendant with the opportunity to resolve the
    negligence   and    gross   negligence     claims   at   the       administrative
    level.
    Defendant cannot say that it was deprived of a chance to
    mitigate the gross negligence and negligence penalties before
    Customs commenced this action.        Defendant responded to the Pre-
    penalty notice by letter dated June 8, 2001, in which it argued
    that it acted in a commercially reasonable manner under the common
    law standard of care, and that there were several mitigating
    factors in favor of cancelling the penalties for gross negligence
    and   negligence.   Pl.’s   Br.   Letter    from    Becker     &    Poliakoff   to
    Customs, Ex. 23, at 1-19, June 8, 2001; see United States v. CTS
    Holding, LLC, 39 CIT ____, Slip Op. 15-70 (June 30, 2015) (finding
    that “Defendant’s attempts to resolve the penalty claim before
    Customs, prior to Plaintiff’s bringing this action, demonstrate
    that Defendant received sufficient, actual notice that the claim
    sounded in negligence.”) Accordingly, Customs afforded Defendant
    an opportunity to resolve the negligence and gross negligence
    claims at the administrative level before the action was commenced
    Consol. Court No. 10-00119                                 Page 29
    in this Court.    Defendant’s own arguments show that it believed
    Customs pursued penalties for gross negligence and negligence in
    the event that fraud could not be proven.
    As with Optrex, Defendant also mistakenly relies on
    United States v. Nitek Electronics, Inc., 
    844 F. Supp. 2d 1298
    , 1298
    (2012) (Not reported in Court of International Trade Reports),
    appeal filed and docketed, Appeal No. 15-1166 (Fed. Cir. ____).
    In Nitek, the court barred a penalty claim and held that Customs
    failed to perfect its penalty claim where it sought to recover a
    penalty “based upon a degree of culpability (negligence) that
    differs from that alleged at the administrative level (gross
    negligence).” 
    Id. at 1305.
         In Nitek the court also found that
    “nothing prevented Customs from bringing penalty claims for both
    negligence and gross negligence in the alternative, as it has done
    in the past.”    
    Id. at 1308.
    By contrast, in this case, the degrees of culpability
    alleged in the complaint, (fraud, or in the alternative gross
    negligence, or negligence) were exactly the same as those alleged
    at the administrative level (fraud or in the alternative gross
    negligence, or negligence). 
    Id. at 1305.
       Unlike in Nitek, here,
    Customs brought the negligence and gross negligence claims in the
    alternative. See 
    id. It cannot
    be said that Customs did not perfect
    its penalty claim or that Defendants were robbed of an opportunity
    Consol. Court No. 10-00119                                              Page 30
    to resolve the negligence and gross negligence claims at the
    administrative level. See 
    id. Defendant also
    contends that the gross-negligence and
    negligence claims must be dismissed, because Customs failed to
    disclose all material facts establishing those violations in its
    Pre-Penalty notice. Def.’s Br. at 14.
    In order to bring a section 1592 claim in this Court,
    several statutory requirements must be met at the administrative
    level. 19 U.S.C. § 1592 (b)(1). When Customs has reasonable cause
    to believe there has been a violation of section 1592 it must issue
    a pre-penalty notice which “disclose[s] all the material facts
    which establish the alleged violation.”           
    Id. at (b)(1)(A)(iv).
    A violation is grossly negligent where it results from
    an   act   or   omission   done   with   actual   knowledge   of   or   wanton
    disregard for the relevant facts and with indifference to or
    disregard for the offender’s obligations under the statute. 19
    C.F.R. Pt. 171, App. B (C)(2). In the Pre-penalty Notice, Customs
    wrote that Rupari purchased crawfish from Yupeng Fishery Ltd. in
    China, knowing that the crawfish originated in China, and prepared
    invoices and entry documents falsely stating that the crawfish
    originated in Thailand. Pl.’s Br. Pre-penalty Notice, Ex. 19, at
    3. The notice further alleged that this was done to avoid paying
    antidumping duties in contravention of Rupari’s obligations under
    the statute. 
    Id. The court
    finds that Customs disclosed all
    Consol. Court No. 10-00119                                           Page 31
    material facts which establish gross negligence and it denies
    Defendant’s motion to dismiss the gross negligence claim.
    Negligence requires facts that establish that a duty of
    reasonable care and competence existed and that Defendant failed
    to exercise reasonable care and competence in making statements or
    providing information to Customs.           19 C.F.R. Pt. 171, App. B
    (C)(1).     Here, although Customs did not explicitly state that
    Rupari owed a duty and breached that duty in the Pre-penalty and
    Penalty notices, clearly, Rupari was adequately apprised of the
    fact that this negligence claim involved allegations that Rupari
    breached a duty of reasonable care, as evidenced by Rupari’s own
    arguments   against   a   finding   of   negligence   by   Customs   at   the
    administrative level:
    Rupari conducted itself in a commercially
    reasonable manner . . . . [A] general custom,
    use, or practice by those in the same business
    or trade may be considered some evidence of
    what constitutes reasonable conduct in that
    trade or business . . . . Other domestic buyers
    of crawfish and other seafood will, if
    necessary, testify that Rupari’s actions were
    no different than most such other domestic
    buyers in similar situations.
    Pl.’s Br. Letter from Becker & Poliakof to Customs, Ex. 23, at 4-
    5, June 8, 2001; see also United States v. Dantzler Lumber & Export
    Co., 
    16 CIT 1050
    , 1059, 
    810 F. Supp. 1277
    , 1285 (1992) (finding
    that as long as Defendants were adequately apprised of the scenario
    of the action, Customs has met the requirement of disclosing all
    Consol. Court No. 10-00119                                      Page 32
    material   facts   establishing   the   violation).   Thus,   the   court
    declines to dismiss the negligence count.
    CONCLUSION
    For the reasons stated above, Plaintiff’s request for
    leave to amend the Complaint is granted in part and denied in part
    consistent with this opinion.     It is further
    ORDERED that Defendant’s Motion to Dismiss is DENIED; it
    is further
    ORDERED that Plaintiff’s Request for Leave to Amend the
    Complaint is GRANTED IN PART AND DENIED IN PART, consistent with
    the court’s opinion; it is further
    ORDERED that Plaintiff shall file an Amended Complaint,
    consistent with this opinion, no later than August 31, 2015; it is
    further
    ORDERED that Defendants must submit their Amended Answer
    no later than September 21, 2015; and it is further
    ORDERED that Plaintiff and Defendants must submit a
    joint proposed scheduling order no later than September 28, 2015.
    SO ORDERED.
    /s/ Nicholas Tsoucalas
    Nicholas Tsoucalas
    Senior Judge
    Dated:    August 24, 2015
    New York, New York
    ERRATA
    Please make the following changes to United States v. American
    Casualty Co. of Reading Pennsylvania, Consol. Court No.: 10-00119,
    Slip Op. 15-94:
    •   On page 16, Lines 4-5: change “Customs conducted the
    deposition of a confidential informant who recounted” to “a
    confidential informant was deposed who recounted.”
    •   On page 26, Line 17: change “Commerce” to “Customs.”
    August 26, 2015