GPX International Tire Corp. v. United States , 33 Ct. Int'l Trade 114 ( 2009 )


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  •                                     SLIP OP. 09-11
    UNITED STATES COURT OF INTERNATIONAL TRADE
    _____________________________________
    :
    GPX INTERNATIONAL TIRE                   :
    CORPORATION and HEBEI                    :
    STARBRIGHT TIRE CO., LTD.,               :
    :
    Plaintiffs,            :
    v.                           : Before: Jane A. Restani, Chief Judge
    :
    UNITED STATES,                           : Consol. Court No. 08-00285
    :
    Defendant,             :
    :
    and                          :
    :
    BRIDGESTONE AMERICAS, INC.,              :
    BRIDGESTONE AMERICAS TIRE                :
    OPERATIONS, LLC, TITAN TIRE              :
    CORPORATION, and UNITED STEEL,           :
    PAPER AND FORESTRY, RUBBER,              :
    MANUFACTURING, ENERGY, ALLIED :
    INDUSTRIAL AND SERVICE                   :
    WORKERS INTERNATIONAL UNION,             :
    AFL-CIO-CLC,                             :
    :
    Defendant-Intervenors. :
    _____________________________________:
    OPINION
    [Proposed plaintiff-intervenor’s motion to intervene denied.]
    Dated: February 12, 2009
    Winston & Strawn, LLP (Daniel L. Porter and James P. Durling); Hinckley Allen
    & Snyder LLP (Eric F. Eisenberg); Orrick, Herrington & Sutcliffe LLP (John A. Jurata, Jr.) for
    the plaintiffs.
    Winston & Strawn, LLP (Daniel L. Porter and James P. Durling) for the proposed
    plaintiff-intervenor.
    Michael F. Hertz, Deputy Assistant Attorney General; Jeanne E. Davidson,
    Director, Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil
    Consol. Court No. 08-00285                                                                  Page 2
    Division, U.S. Department of Justice (John J. Todor and Loren M. Preheim); Irene H. Chen and
    Matthew D. Walden, Office of the Chief Counsel for Import Administration, U.S. Department of
    Commerce, of counsel, for the defendant.
    King & Spalding, LLP (Joseph W. Dorn, Christopher T. Cloutier, Daniel L.
    Schneiderman, J. Michael Taylor, and Kevin M. Dinan); Stewart and Stewart (Geert M. De
    Prest, Elizabeth A. Argenti, Elizabeth J. Drake, Eric P. Salonen, Terence P. Stewart, Wesley K.
    Caine, and William A. Fennell) for the defendant-intervenors.
    Restani, Chief Judge: This matter is before the court on the Ministry of
    Commerce, People’s Republic of China’s (“Government of China”) motion to intervene in GPX
    International Tire Corp. v. United States, Consol. Court No. 08-00285, pursuant to USCIT Rule
    24 and 
    28 U.S.C. § 2631
    (j)(1)(B) (2006). Plaintiffs GPX International Tire Corporation
    (“GPX”) and Hebei Starbright Tire Co., Ltd. (“Starbright”) seek judicial review of the
    Department of Commerce’s (“Commerce”) determinations imposing both antidumping (“AD”)
    and countervailing (“CVD”) duties on certain pneumatic off-the-road (“OTR”) tires from the
    People’s Republic of China. See Certain New Pneumatic Off-the-Road Tires From the People’s
    Republic of China: Notice of Amended Final Affirmative Determination of Sales at Less Than
    Fair Value and Antidumping Duty Order, 
    73 Fed. Reg. 51,624
     (Dep’t Commerce Sept. 4, 2008);
    Certain New Pneumatic Off-the-Road Tires From the People’s Republic of China: Final
    Affirmative Countervailing Duty Determination and Final Negative Determination of Critical
    Circumstances, 
    73 Fed. Reg. 40,480
     (Dep’t Commerce July 15, 2008). The Government of
    China’s current motion arises out of plaintiffs’ apparent inability to continue to pursue
    vigorously judicial review of these determinations due to financial constraints. Because the
    Government of China has not demonstrated good cause for the untimely filing of its motion to
    intervene, the court denies the motion.
    Consol. Court No. 08-00285                                                                 Page 3
    On September 9, 2008, plaintiffs filed complaints challenging Commerce’s AD
    and CVD determinations, as well as a motion for a temporary restraining order and preliminary
    injunction, alleging that collection of full AD and CVD deposits would cause irreparable harm.
    The court denied plaintiffs’ motion on November 12, 2008 and denied plaintiffs’ motion for
    reconsideration on December 30, 2008. The Government of China moved to intervene on
    January 13, 2009.
    Pursuant to USCIT Rule 24(a), motions to intervene must be filed within thirty
    days of service of the complaint. USCIT R. 24(a). A court may permit late intervention only for
    good cause, upon a showing of “(1) mistake, inadvertence, surprise or excusable neglect; or
    (2) under circumstances in which by due diligence a motion to intervene . . . could not have been
    made within the 30-day period.” 
    Id.
     In determining what type of neglect would be deemed
    excusable, this court considers “all relevant circumstances surrounding the party’s omission,”
    including “the danger of prejudice to the [non-movant], the length of the delay and its potential
    impact on judicial proceedings, the reason for the delay, including whether it was within the
    reasonable control of the movant, and whether the movant acted in good faith.” Siam Food
    Prods. Pub. Co. v. United States, 
    24 F. Supp. 2d 276
    , 279 (CIT 1998) (internal quotation marks
    and citation omitted); see also Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 
    507 U.S. 380
    , 395 (1993).
    The Government of China maintains that its untimely submission was caused by
    “excusable neglect” because the need to intervene became apparent only when it learned that
    plaintiffs no longer had the financial means to fully and adequately pursue their appeals of the
    administrative decisions. (Mot. to Intervene by the Gov’t of the People’s Republic of China 2, 6
    Consol. Court No. 08-00285                                                                     Page 4
    (“Gov’t of China Mot.”); see also Barringer Aff. ¶ 8 (“It was [the Government of China’s]
    understanding that GPX and Starbright would be able to continue participating in the court
    appeals, provided that the Court granted the preliminary injunction sought by GPX and
    Starbright.”).) The Government of China further contends that the approval process to file a
    motion to intervene on its behalf is complex and time consuming and that a decision was made to
    wait until a final resolution in the preliminary injunction proceedings before seeking
    authorization to intervene. (Gov’t of China Mot. 5.)
    The Government of China also alleges that granting the motion would not
    prejudice the other parties, as it intends to address only those issues already set forth in
    plaintiffs’ amended complaints. (Id.) Commerce, however, contends that it would be prejudiced
    because it would have to “devote additional resources and analyze different portions of the
    record at this late stage to respond to China’s brief.” (Def.’s Opp’n to Mot. to Intervene by the
    Gov’t of the People’s Republic of China 7.) Commerce alleges this delay is particularly
    prejudicial because GPX filed a motion for leave to amend its complaint prior to the Government
    of China’s motion to intervene in order to raise issues that would be subsequently argued by the
    Government of China once they intervened. (Id. at 8.)1
    It is likely some prejudice would result from granting the movant’s request to
    intervene, but underlying merits litigation did not proceed while litigation on plaintiffs’ motion
    for a preliminary injunction was ongoing, and a briefing schedule has only recently been issued.
    The court is more troubled by the Government of China’s conscious decision to delay
    intervention pending the outcome of the preliminary injunction and in particular, its belief that
    1
    The motion to amend will be granted, but it is unclear whether GPX on its own will
    litigate any new issues.
    Consol. Court No. 08-00285                                                                   Page 5
    plaintiffs could continue to maintain their appeals if the preliminary injunction were granted. A
    preliminary injunction is an extraordinary remedy, and preliminary relief from deposit
    requirements is granted only in the rarest of circumstances. See Queen’s Flowers de Colombia
    v. United States, 
    947 F. Supp. 503
    , 506 (CIT 1996). The Government of China was aware of
    plaintiffs’ heavy burden at the preliminary injunction phase and assumed the risk that the court
    would deny the injunction. Further, the Government of China’s argument concerning the slow
    bureaucratic process for intervention approval is belied by its ability to file a motion to intervene
    approximately fifteen days after it allegedly became aware of its need to intervene in the appeals,
    i.e., the date when plaintiffs’ motion for reconsideration of the preliminary injunction was
    denied.
    As we noted in Siam Food, allowing such a broad excuse would enable almost
    any party to delay intervention upon a similar showing, thus rendering “the actual time limit [of
    Rule 24] superfluous.” Siam Food, 
    24 F. Supp. 2d at 281
    . “The court is not convinced that the
    circumstances that gave rise to this motion were genuinely outside the reasonable control” of the
    Government of China. Home Prods. Int’l, Inc. v. United States, 
    521 F. Supp. 2d 1382
    , 1385
    (CIT 2007). The Government of China had notice of the substantive issues raised by the appeals
    and could have moved to intervene. Instead, it delayed its decision on its involvement, awaiting
    a favorable determination on a motion for preliminary injunction. There is no “excusable
    neglect” present, but rather “a conscious decision not to intervene timely.” Siam Food, 
    24 F. Supp. 2d at 280
    . Given the additional complications adding another party would cause and
    given the lack of a reasonable excuse for the untimely motion, the motion will be denied.
    Consol. Court No. 08-00285                                                              Page 6
    For the foregoing reasons, the court finds that the Government of China failed to
    establish good cause for its untimely submission of this motion. Accordingly, the motion is
    denied.
    /s/ Jane A. Restani
    Jane A. Restani
    Chief Judge
    Dated: This 12th day of February, 2009.
    New York, New York.
    

Document Info

Docket Number: Consol. Court 08-00285

Citation Numbers: 2009 CIT 11, 33 Ct. Int'l Trade 114

Judges: Restani

Filed Date: 2/12/2009

Precedential Status: Precedential

Modified Date: 11/3/2024