Ashley Furniture Indus., Inc. v. United States , 2012 CIT 16 ( 2012 )

Slip Op. 12- 16
UNITED STATES COURT OF INTERNATIONAL TRADE
ASHLEY FURNITURE INDUSTRIES, INC.,
Plaintiff,
v.
UNITED STATES and UNITED STATES
INTERNATIONAL TRADE COMMISSION,
Defendants,
Before: Gregory W. Carman, Judge
and Timothy C. Stanceu, Judge
Leo M. Gordon, Judge
AMERICAN FURNITURE
MANUFACTURERS COMMITTEE FOR Consol. Court No. 07-00323
LEGAL TRADE, KINCAID FURNITURE
CO., INC., L. & J.G. STICKLEY, INC.,
SANDBERG FURNITURE
MANUFACTURING COMPANY, INC.,
STANLEY FURNITURE COMPANY, INC.,
T. COPELAND AND SONS, INC., and
VAUGHAN-BASSETT FURNITURE
COMPANY, INC.,
Defendant-Intervenors.
OPINION AND ORDER
[Denying a motion to shorten the time period for defendants’ and defendant-intervenors’
responses to plaintiff’s motion for an injunction pending appeal]
Dated: February 7, 2012
Kristen H. Mowry, Jeffrey S. Grimson, Jill A. Cramer, Susan E. Lehman, and Sarah
Wyss, Mowry & Grimson, PLLC, of Washington, DC and Kevin Russell, Goldstein, Howe &
Russell, P.C., of Bethesda, MD, for plaintiff.
Jessica R. Toplin, David S. Silverbrand, and Courtney S. McNamara, Trial Attorneys,
Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC,
for defendant United States. With them on the briefs were Tony West, Assistant Attorney
Consol. Court No. 07-00323 Page 2
General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of
counsel on the briefs were Andrew G. Jones and Joseph Barbato, Office of Assistant Chief
Counsel, U.S. Customs and Border Protection, of New York, NY.
Patrick V. Gallagher, Jr., Attorney Advisor, Office of the General Counsel, U.S.
International Trade Commission, of Washington, DC, for defendant U.S. International Trade
Commission. With him on the briefs were James M. Lyons, General Counsel, and Neal J.
Reynolds, Assistant General Counsel.
Jeffrey M. Telep, Joseph W. Dorn, Taryn Koball Williams, and Steven R. Keener,
King & Spalding LLP, of Washington, DC, for defendant-intervenors the American Furniture
Manufacturers Committee for Legal Trade, Kincaid Furniture Co., Inc., L. & J.G. Stickley, Inc.,
Sandberg Furniture Manufacturing Company, Inc., Stanley Furniture Co., Inc., T. Copeland and
Sons, Inc., and Vaughan-Bassett Furniture Company, Inc.
Stanceu, Judge: Plaintiff Ashley Furniture Industries, Inc. (“Ashley”) seeks, pursuant to
USCIT Rule 62(c), an injunction pending its appeal of the judgment dismissing this action. Pl.’s
Mot. for Inj. Pending Appeal & for Expedited Consideration (Feb. 2, 2012), ECF No. 103; see
Ashley Furniture Industries, Inc. v. United States, 36 CIT __, Slip Op. 12-14 (Jan. 31, 2012)
(“Ashley”) (dismissing certain claims for lack of standing and remaining claims for failure to
state a claim on which relief can be granted). Before the court is plaintiff’s motion to limit to
five days the normal fourteen-day time period during which defendants and defendant-
intervenors may respond to the Rule 62(c) motion. Mot. to Shorten the Time Period to Resp. to
Pl.’s Mot. for Inj. Pending Appeal & for Expedited Consideration (Feb. 2, 2012), ECF No. 104
(“Pl.’s Mot.”). Defendant United States and defendant-intervenors oppose any shortening of the
response period. Defs. United States & U.S. Customs & Border Protection’s Resp. in Opp’n to
Pl.’s Mot. for Expedited Consideration of its Mot. for Inj. Pending Appeal (Feb. 3, 2012), ECF
No. 106; Def.-Intervenors’ Opp’n to Pl.’s Mot. to Shorten the Time Period to Resp. to Pl.’s Mot.
for Inj. Pending Appeal & for Expedited Consideration (Feb. 3, 2012), ECF No. 105. As
discussed below, the court will deny the motion, thereby allowing defendants and defendant-
Consol. Court No. 07-00323 Page 3
intervenors the normal time period to respond to Ashley’s Rule 62(c) motion. See USCIT
Rule 7(d) (“Unless otherwise prescribed by these rules, or by order of the court, a response to a
motion must be served within 14 days after service of such motion . . . .”).
In Ashley, we upheld administrative determinations of U.S. Customs and Border
Protection (“Customs”) and the U.S. International Trade Commission denying Ashley
distributions pursuant to the Continued Dumping and Subsidy Offset Act of 2000 (the “CDSOA”
or “Byrd Amendment”), Pub. L. No. 106-387, §§ 1001-03, 114 Stat. 1549, 1549A-72-75,
19 U.S.C. § 1675c (2000), repealed by Deficit Reduction Act of 2005, Pub. L. 109-171,
§ 7601(a), 120 Stat. 4, 154 (Feb. 8, 2006; effective Oct. 1, 2007). Ashley, 36 CIT at __, Slip Op.
12-14 at 29 (Jan. 31, 2012). Ashley’s Rule 62(c) motion seeks to enjoin the government from
distributing to other domestic furniture producers Ashley’s potential share of funds now being
withheld by Customs, until such time as Ashley’s appeal is finally adjudicated. Pl.’s Mot. 2. In
support of its argument that the response time should be shortened, Ashley submits an affidavit
from its counsel, Mr. Jeffrey S. Grimson, stating that Customs intends to distribute on March 9,
2012 the CDSOA funds withheld for Ashley. Affidavit of Grimson ¶ 3 (Feb. 2, 2012), ECF
No. 104. Mr. Grimson states that, should this Court deny the Rule 62(c) motion, Ashley will
seek a similar injunction from the U.S. Court of Appeals for the Federal Circuit (“Court of
Appeals”) but, under Rule 8 of the Federal Rules of Appellate Procedure, will be unable to do so
until this Court has ruled. Id. ¶ 4. According to Mr. Grimson, “expedited briefing is warranted”
so that the Court of Appeals has sufficient opportunity to consider a future injunction motion
prior to the March 9, 2012 distribution date. Id. ¶ 5.
Consol. Court No. 07-00323 Page 4
The court determines that the ordinary motion procedures should govern in this instance
rather than an abbreviation of the time for defendants and defendant-intervenors to respond to
the Rule 62(c) motion. See USCIT Rule 7(e) (“No order to show cause to bring on a motion may
be granted except on a clear and specific showing by affidavit of good and specific reasons why
procedure other than regular motion is necessary or why the time to respond should be
shortened.”). We do not discern a need for the expedited briefing identified in Mr. Grimson’s
affidavit. The court intends to rule expeditiously on plaintiff’s Rule 62(c) motion. Should we
deny that motion, the Court of Appeals still would have an adequate opportunity to consider
whether to award injunctive relief and to put such relief in place prior to March 9, 2012.
Upon consideration of plaintiff’s motion and other papers and proceedings herein, and
upon due deliberation, it is hereby
ORDERED that plaintiff’s Motion to Shorten the Time Period to Respond to Plaintiff’s
Motion for Injunction Pending Appeal and for Expedited Consideration (Feb. 2, 2012), ECF
No. 104, be, and hereby is, DENIED.
/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge
Dated: February 7, 2012
New York, New York