Jinfu Trading Co. v. United States , 29 Ct. Int'l Trade 107 ( 2005 )

SLIP OP . 05-14
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE : RICHARD K. EATON , JUDGE
____________________________________
:
JINFU TRADING CO , LTD ., :
:
PLAINTIFF , :
:
V. : COURT NO . 04-00597
:
UNITED STATES , :
:
DEFENDANT, :
:
AND :
:
SIOUX HONEY ASSOCIATION AND AMERICAN :
HONEY PRODUCERS ASSOCIATION , :
:
DEFENDANT-INTERVENO RS. :
____________________________________:
[Plaintiff’s partial consent motion for preliminary injunction granted]
January 31, 2005
Grunfeld Desiderio Lebowitz Silverman & Klestadt LLP (Adam M. Dambrov and Bruce
M. Mitchell), for plaintiff Jinfu Trading Co, Ltd.
Peter D. Keisler, Assistant Attorney General, Civil Division, United States Department of
Justice; David M. Cohen, Director, Jeanne E. Davidson, Deputy Director, Commercial Litigation
Branch, Civil Division, United States Department of Justice (Stefan Shaibani) for defendant
United States.
Collier, Shannon, Scott, PLLC (Jennifer E. McCadney and Michael Joseph Coursey), for
defendant-intervenors Sioux Honey Association and American Honey Producers Association.
MEMORANDUM OPINION
EATON , Judge: Before the court is the motion of plaintiff, Jinfu Trading Co, Ltd., for a
COURT NO . 04-00597 PAGE 2
preliminary injunction pursuant to 19 U.S.C. § 1516a(c)(2) (2000), and USCIT R. 7 and 56.2(a)
to enjoin the liquidation of any unliquidated entries of the subject merchandise1 during the
pendency of this antidumping action.2 Defendant-Intervenors, Sioux Honey Association and
American Honey Producers Association, do not object to plaintiff’s motion. The United States,
on behalf of the Department of Commerce, consents to the granting of the motion, but objects to
“the duration of [plaintiff’s] proposed preliminary injunction.”3
The objected-to language in plaintiff’s proposed order would enjoin liquidation “pending
a final and conclusive court decision in this litigation, including all appeals and remand
proceedings . . . .”4 Pl.’s Proposed Order at 1. Thus, while not objecting to the issuance of an
1
The subject merchandise is honey from the People’s Republic of China (“P.R.C.”)
which was: (1) the subject of the administrative determination, Honey from the P.R.C., 69 Fed.
Reg. 64,029 (ITA Nov. 3, 2004) (final results); (2) exported to or imported into the United States
by Jinfu Trading Co. and Jinfu Trading (USA), Inc., and was entered or withdrawn from a
warehouse for consumption during the period December 1, 2002, through May 31, 2003. Pl.’s
Proposed Order at 1.
2
See Plaintiff’s Complaint contesting the United States Department of Commerce’s
finding in Honey from the People’s Republic of China, 69 Fed. Reg. 64,029 (ITA Nov. 3, 2004)
(final notice and final rescission). Compl. at 6–8.
3
“We respectfully oppose the duration of Jinfu’s proposed preliminary injunction
because this term is ambiguous and certain courts have, incorrectly, we believe,
concluded that similar language has extended the duration of preliminary
injunctions beyond the entry of a final judgment by the [Court of International
Trade].”
Def.’s Br. at 1.
4
This language apparently is adapted from the Judgment Order in Corus Staal BV
v. United States, 28 CIT __, slip. op. 04-132 (Oct. 19, 2004) (not published in the Federal
Supplement), which reads
COURT NO . 04-00597 PAGE 3
injunction, defendant objects to the issuance of an injunction that extends beyond the final
judgment in this court. The position of the United States is consistent with that taken in previous
cases that have been the subject of several recent, well-reasoned opinions. See, e.g., Corus Staal
BV, 28 CIT at __, slip op. 04-132 at 1–3; PAM, S.p.A. v. United States, 28 CIT __, __, slip op.
04-66 at 11–15 (June 10, 2004) (not published in the Federal Supplement); SKF USA Inc. v.
United States, 28 CIT __, __, 316 F. Supp. 2d 1322, 1333–35 (2004); Yancheng Baolong
Biochem. Prods. Co. v. United States, 27 CIT __, __, 277 F. Supp. 2d 1349, 1358–60 (2003).
These cases all hold that a preliminary injunction of this Court, issued pursuant to 19
U.S.C. 1516a(c)(2) (2000), may extend through all appeals. See, e.g., Corus Staal BV, 28 CIT at
__, slip op. 04-132 at 3 (“there is nothing in the statute which limits the court’s discretion in
fashioning an injunction appropriate to the case[,] and the preliminary injunction law of the
various circuits . . . which might indicate a preliminary injunction terminates with the conclusion
of litigation in the trial court, does not apply to the special statutory injunction at issue.”).
Defendant makes no argument that has not been raised in these previous cases, and makes
no factual distinction from these previous cases that would require the court to reach a different
that defendant, the United States, together with the delegates, officers, agents,
servants, and employees of the United States Department of Commerce and the
United States Bureau of Customs and Border Protection, shall be, and hereby are,
enjoined, during the pendency of this litigation (including all relevant appeals and
remands), from liquidation or causing or permitting liquidation of any
unliquidated entries of hot-rolled carbon flat steel from the Netherlands . . . .
Corus Staal BV, slip op. 04-132 (J. Order at 1).
COURT NO . 04-00597 PAGE 4
result.
Therefore, in order to fully protect plaintiff’s rights, and in the interest of judicial
economy, plaintiff’s proposed order granting an injunction of liquidation will be entered.
/s/Richard K. Eaton
Richard K. Eaton
Dated: January 31, 2005
New York, New York