Sumecht NA, Inc. v. United States , 331 F. Supp. 3d 1408 ( 2018 )

Slip Op. 18-109
UNITED STATES COURT OF INTERNATIONAL TRADE
SUMECHT NA, INC., d.b.a., SUMEC
NORTH AMERICA,
Plaintiff,
v.
Before: Jennifer Choe-Groves, Judge
UNITED STATES,
Court No. 17-00244
Defendant,
and
SOLARWORLD AMERICAS, INC.,
Defendant-Intervenor.
OPINION AND ORDER
[Plaintiff’s Motion to Strike is denied. Plaintiff’s Motion for Preliminary Injunction is denied.]
Dated: August 30, 2018
Mark B. Lehnardt and Lindita V. Ciko Torza, Baker & Hostetler, LLP, of Washington, D.C.,
argued for Plaintiff Sumecht NA, Inc. d.b.a., Sumec North America. Jake R. Frischknecht also
appeared.
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 the 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 Neelakantan, 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-
Court No. 17-00244 Page 2
Sabaawi. Adam M. Teslik, Cynthia C. Galvez, Maureen E. Thorson, and Tessa V. Capeloto also
appeared.
Choe-Groves, Judge: Plaintiff Sumecht NA, Inc., doing business as Sumec North
America (“Plaintiff” or “Sumec”), imports crystalline silicon photovoltaic cells from the
People’s Republic of China (“China”). Sumec initiated this case to contest certain administrative
and enforcement actions taken by the U.S. Department of Commerce (“Commerce” or
“Department”) relating to the Department’s investigation of the subject merchandise. Before the
court are Plaintiff’s Motions for Temporary Restraining Order and for Preliminary Injunction,
Aug. 8, 2018, ECF No. 40 (“Pl.’s Mot. Prelim. Inj.”), 1 and Plaintiff’s Motion to Strike, Aug. 17,
2018, ECF No. 48 (“Pl.’s Mot. Strike”). For the following reasons, the court denies both
motions.
PROCEDURAL HISTORY
This court has jurisdiction pursuant to 28 U.S.C. § 1581(i)(4) (2012). Plaintiff
commenced this action to contest (1) Commerce’s decision in the Timken Notice 2 to set the
effective date of Sumec’s judicially-revised antidumping duty deposit rate retroactive to 39 days
before the date of publication of the Timken Notice; (2) Commerce’s decision in the Amended
1
Plaintiff contends that its motion is timely pursuant to USCIT Rule 56.2(a), which requires a
showing of “good cause” when a motion for statutory injunction is filed more than thirty days
after service of the complaint in a case brought under 28 U.S.C. § 1581(c) (2012). USCIT Rule
56.2(a). Because this action arises under 28 U.S.C. § 1581(i), USCIT Rule 56.2 does not apply.
2
“If the CIT (or this court) renders a decision which is not in harmony with Commerce’s
determination, then Commerce must publish notice of the decision within ten days of issuance
(i.e., entry of judgment), regardless of the time for appeal or of whether an appeal is taken.”
Timken Co. v. United States, 893 F.2d 337, 341 (Fed. Cir. 1990) (emphasis omitted).
Court No. 17-00244 Page 3
Cash Deposit Instructions to set the cash deposit rate at the 238.95 percent China-wide rate rather
than the 13.18 percent deposit rate in effect; and (3) Commerce’s decision to issue the Automatic
Liquidation Instructions without correcting the effective date of the Amended Cash Deposit
Instructions. Am. Compl. ¶¶ 41–46, Oct. 10, 2017, ECF No. 15.
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 of 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 28
U.S.C. § 1581(i). See id. at 3–4.
Commerce published the final results of the administrative review on July 23, 2018,
which 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. 44; Def.-Intervenor’s Opp’n Pl.’s
Mot. Prelim. Inj., Aug. 15, 2018, ECF No. 45.
Court No. 17-00244 Page 4
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 Opp’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 that 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). Prior
Court No. 17-00244 Page 5
opinions from this Court have recognized that “[t]here is no occasion for a party to move to
strike portions of an opponent'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 extraordinary 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 the merits of the action;
(3) whether the balance of hardships favors the imposition of the injunction; and (4) whether the
injunction is in the public interest. See Wind Tower Trade Coal., 741 F.3d at 95. No one factor
is “‘necessarily dispositive,’ because ‘the weakness of the showing regarding one factor may be
Court No. 17-00244 Page 6
overborne by the strength of the others.’” Belgium v. United States, 452 F.3d 1289, 1292–93
(Fed. Cir. 2006) (citing FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993)). The
factors should be weighed according to a “sliding scale,” which means that a greater showing of
irreparable harm in Plaintiff’s favor lessens the burden on Plaintiff to show a likelihood of
success on the merits. See id. (internal citations omitted).
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 hypothetical 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 because the case law is unclear as to
whether reliquidation of entries is permitted for actions brought under 28 U.S.C. § 1581(i). See
id. at 7; see also Preliminary Injunction Hearing at 0:12:20–0:13:35, Aug. 28, 2018, ECF No. 56.
Sumec argues that liquidation of the subject entries may deprive it of a meaningful opportunity
to challenge Commerce’s actions, and this possibility warrants the issuance of a preliminary
injunction. See Pl.’s Mot. Prelim. Inj. 7–8. Again, Plaintiff’s allegations are merely speculative,
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unsupported, and fail to establish an immediate, viable threat of harm. Plaintiff’s claim is not
particularized enough to meet the burden of proof required for the issuance of a preliminary
injunction. Because Sumec has not demonstrated that it will suffer irreparable harm absent a
preliminary injunction, the court need not address the remaining three factors. See Otter Prods.,
LLC v. United States, 38 CIT __, __, 37 F. Supp. 3d 1306, 1316 (2014) (citing Qingdao Taifa
Grp. v. United States, 581 F.3d 1375, 1378 (Fed. Cir. 2009)); see also Matsushita Elec. Indus.
Co. v. United States, 823 F.2d 505, 509 (Fed. Cir. 1987).
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 issuance 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
ORDERED that the temporary restraining order in this action is dissolved.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: August 30, 2018
New York, New York