West Fraser Mills Ltd. v. United States , 29 Ct. Int'l Trade 748 ( 2005 )

Slip Op. 05-83
UNITED STATES COURT OF INTERNATIONAL TRADE
WEST FRASER MILLS LTD.,
Plaintiff,
v.
BEFORE: Restani, Chief Judge
UNITED STATES, Eaton, Judge
Stanceu, Judge
Defendant,
Consol. Court No. 05-00079
and
THE COALITION FOR FAIR
LUMBER IMPORTS EXECUTIVE
COMMITTEE,
Defendant-Intervenor.
MEMORANDUM ORDER
Defendant United States moves, pursuant to USCIT Rule 7(f),
for an order modifying a preliminary injunction that the Court
issued by order dated March 7, 2005 in this case and a second
preliminary injunction that the Court issued by order dated
March 10, 2005 in two cases (Court Nos. 05-00136 and 05-00144) now
consolidated in this action. Under the preliminary injunctions,
defendant is enjoined, during the pendency of the litigation before
this Court, from liquidating, or causing or permitting liquidation,
of import entries of softwood lumber from Canada that were
produced, exported or imported by the various plaintiffs in this
consolidated case. For the reasons discussed herein, the Court
Consol. Court No. 05-00079 Page 2
orders only those changes to the two injunctions to which all
affected parties have consented.
Both preliminary injunctions were ordered with the consent of
the parties. Defendant’s motion now seeks to remove the names of
certain importers of softwood lumber from Canada as identified in
Attachment A to the March 7, 2005 injunction and in Exhibit A to
the March 10, 2005 injunction. Defendant also seeks an order
modifying the March 7, 2005 preliminary injunction by separately
listing individual Customs identification numbers for Landmark
Truss & Lumber Inc. (A-122-838-230), Frontier Mills Inc. (A-122-
838-184), and Fraser Pacific Forest Products, Inc. (A-122-838-180).
All affected parties have consented to the changes that
defendant’s motion would make to the preliminary injunction entered
on March 10, 2005. Defendant obtained consent for the changes it
seeks to the March 7, 2005 preliminary injunction from all affected
parties, with the exception of Commonwealth Plywood Co. Ltd.,
Leggett & Platt Ltd., and Leggett & Platt (B.C.) Ltd.
Defendant seeks to modify the preliminary injunction entered
March 7, 2005 by deleting names of several importers that were
listed with notations such as “doing business as,” “formerly,” or
“now known as.” The March 7, 2005 preliminary injunction
identified Commonwealth Plywood Co. Ltd. as “also doing business as
Bois Clo-Val and Les Entreprises Atlas.” Defendant’s motion seeks
to remove Bois Clo-Val and Les Entreprises Atlas from Attachment A
Consol. Court No. 05-00079 Page 3
of the March 7, 2005 preliminary injunction. The March 7, 2005
preliminary injunction identified Leggett & Platt Ltd., and Leggett
& Platt (B.C.) Ltd. as “(dba: Leggett Wood).” Defendant seeks to
have the notation “(dba: Leggett Wood)” removed from that
injunction.
Defendant contends that the company names it would have
removed from the preliminary injunctions do not match the names of
the companies that participated before the U.S. Department of
Commerce (“Commerce”) in the administrative review at issue, as
established by the administrative record. See Def.’s Am. Mot. to
Modify Inj. (“Def.’s Mot.”) at 2. According to defendant, Commerce
“cannot recognize company names different from the specific,
individual company names provided to Commerce on the record during
the administrative review.” Id. Defendant argues that the
proposed modifications are necessary to enable Commerce to properly
perform its administrative task of instructing the Bureau of
Customs and Border Protection (“Customs”) to suspend liquidation of
subject entries of softwood lumber from Canada. See id. at 4.
Commonwealth Plywood filed a brief in opposition to
defendant’s motion, arguing that the removal of Bois Clo-Val and
Les Entreprises Atlas from the March 7, 2005 preliminary injunc-
tion amounts to “a motion to dismiss claims by two divisions of
Commonwealth [Plywood] due to an alleged lack of standing.” Pl.’s
Opp’n to Def.’s Mot. to Modify Inj. (“Pl.’s Opp’n”) at 2.
Consol. Court No. 05-00079 Page 4
Commonwealth Plywood disputes the factual assertions and legal
conclusions asserted in defendant’s motion, “i.e., that
Commonwealth and its divisions ‘did not participate in the review’
and that Commerce is ‘prohibited’ from issuing suspension and
liquidation instructions until the injunction is amended.” Id. at
5. According to Commonwealth Plywood, the Court should address the
issues of standing that the defendant raises only after the parties
are allowed to fully brief the Court. See id. at 6-8.
Defendant filed a motion, pursuant to USCIT Rule 7(f), for
leave to submit a reply to Commonwealth Plywood’s brief in
opposition, which motion the Court is granting. In the reply,
defendant maintains that it has “not moved to dismiss Bois
Clo[-]Val and Les Entreprises Atlas from this action. There is no
need to do so. Neither is a party to this action.” Def.’s Mot.
For Leave to File Reply & Def.’s Reply to Commonwealth’s Opp’n to
Def.’s Mot. to Modify Injs. at 3. Defendant also argues that it
has “demonstrated” that “Commerce is unable to issue instructions
to [Customs] based upon names that do not match the specific,
individual names provided to Commerce on the record during the
administrative review.” Id. at 2 & 3.
In general, “courts have inherent power and the discretion to
modify injunctions for changed circumstances.” Aimcor, Ala. Sili-
con, Inc. v. United States, 23 CIT 932, 938, 83 F. Supp. 2d 1293,
1299 (1999)(citing Sys. Fed’n No. 91 v. Wright, 364 U.S. 642, 647
Consol. Court No. 05-00079 Page 5
(1961)). However, the moving party bears the burden of
establishing a “change in circumstances that would make the
original preliminary injunction inequitable.” Favia v. Ind. Univ.
of Pa., 7 F.3d 332, 340 (3d Cir. 1993). To support its argument
that defendant has “demonstrated” that Commerce is unable to issue
suspension of liquidation instructions to Customs for importers
that were not specifically named as parties in the underlying
administrative review, defendant cites 19 U.S.C. § 1675 and
19 C.F.R. § 351.213. See Def.’s Mot. at 2. The cited provisions,
however, address generally the matter of who may request an
administrative review and do not address the issue of whether
Commerce is prohibited or otherwise precluded from issuing
suspension of liquidation instructions to Customs for importers
identified in a preliminary injunction.
Defendant has failed to meet its burden of establishing that
“changed circumstances, legal or factual, make the continuation of
the injunction inequitable” absent a modification to delete the
names appearing in the March 7, 2005 preliminary injunction that
are associated with the non-consenting plaintiffs. Aimcor, Ala.
Silicon, Inc., 23 CIT at 938, 83 F. Supp. 2d at 1299 (citing Favia,
7 F.3d at 340). Accordingly, the court denies defendant’s motion
to the extent that it seeks to remove from the March 7, 2005
preliminary injunction the names “Bois Clo-Val,” “Les Entreprises
Atlas,” and “Leggett Wood.” The language of the preliminary
Consol. Court No. 05-00079 Page 6
injunction dated March 7, 2005 suspending liquidation of the
entries subject to the administrative review at issue in this
litigation was constructed after negotiation and was consented to
by all affected parties. See Pl.’s Opp’n at 6. Defendant has
failed to present, or even allude to, evidence establishing that
the continuation of the March 7, 2005 injunction without removal of
the names Bois Clo-Val, Les Entreprises Atlas, and Leggett Wood
would render “the original preliminary injunction inequitable.”
Favia, 7 F.3d at 340. Nor has defendant made a showing that
Commerce is unable to issue to Customs instructions pertaining to
the March 7, 2005 preliminary injunction, or that Customs is unable
to follow such instructions, without deletion of these names.
Further, defendant has failed to show how it would suffer injury
were the Court to reject the contested changes it seeks to the
March 7, 2005 injunction.
Commonwealth Plywood, on the other hand, has established that
the removal of Bois Clo-Val and Les Entreprises Atlas from the
scope of the March 7, 2005 preliminary injunction is likely to
cause irreparable injury. Such a modification could result in a
loss of an opportunity to challenge the antidumping duty margins
and deposit rates applied to import entries identified with those
two names. See Pl.’s Opp’n at 3. Such a result could occur if
Customs liquidates entries made in the name of either Bois Clo-Val
and Les Entreprises Atlas. The same considerations require the
Consol. Court No. 05-00079 Page 7
Court to conclude that defendant has not met the burden of showing
that the name “Leggett Wood” should be removed from the March 7,
2005 preliminary injunction.
Because defendant has failed to meet its burden with regard to
the contested modifications to the March 7, 2005 injunction, the
Court is granting defendant’s motion only to the extent that it
would effect changes to the two preliminary injunctions that are
consented to by the affected parties. The Court is denying
defendant’s motion to the extent that it would make changes to the
preliminary injunction entered March 7, 2005 to which the affected
parties have not consented. Accordingly, it is hereby
ORDERED that defendant’s motion for leave to file a reply to
Commonwealth Plywood’s opposition is granted; it is further
ORDERED that defendant’s motion to modify the injunctions is
denied to the extent that it seeks to delete the names “Bois
Clo-Val,” “Les Entreprises Atlas” and “Leggett Wood” from the
preliminary injunction entered on March 7, 2005; it is further
ORDERED that defendant’s motion is granted to the extent that
it seeks to modify or delete certain other references to names of
plaintiffs in the preliminary injunction entered by this Court on
March 7, 2005 in this consolidated action, and accordingly the
Attachment A to the preliminary injunction entered by this Court on
March 7, 2005 in this consolidated action is hereby modified:
Consol. Court No. 05-00079 Page 8
To delete the reference “Winton Global Lumber Ltd.”
and to revise the accompanying reference “(formerly The
Pas Lumber Company Ltd.)” to read “The Pas Lumber Company
Ltd.”,
To revise the reference to Bridgeside Higa Forest
Industries Ltd. to delete the reference “(now known as
Bridgeside Forest Industries Ltd.)”,
To revise the reference to Vernon Kiln and Millwork
Ltd. to delete the reference “(dba: Paragon Wood–Vernon
Division)”,
To delete the reference “Western Forest Products
Inc.” and to revise the accompanying reference
“(successor company to Doman Forest Products Limited,
Doman Industries Limited, and Doman Western Lumber Ltd.)”
to read “Doman Forest Products Limited, Doman Industries
Limited, and Doman Western Lumber Ltd.”,
To revise the reference to Landmark Truss & Lumber
Inc. to include separate Customs identification numbers
for Landmark Truss & Lumber Inc. (Customs identification
number A-122-838-230), Frontier Mills Inc. (Customs
identification number A-122-838-184) and Fraser Pacific
Forest Products, Inc. (Customs identification number
A-122-838-180), and
To revise the reference to Tembec Inc. to delete the
reference “Gestion PFT Inc.”;
it is further
ORDERED that defendant’s motion is granted to the extent that
it seeks to delete certain references to names from the preliminary
injunction entered by this Court on March 10, 2005 in this
consolidated action, and accordingly the Exhibit A to the
preliminary injunction entered by this Court on March 10, 2005 in
this consolidated case is hereby modified:
Consol. Court No. 05-00079 Page 9
To revise the reference to “Clair Industrial
Development Corp. Ltd. (Waska),” by deleting from that
reference the text “(also doing business as Waska Lath
Inc.)”, and
To revise the reference to Marwood Ltd. by deleting
from that reference the text “(also doing business as:
Cape Cod Wood Siding Inc., Marwood Inc. and Atlantic
Pressure Treating Ltd.).”
/s/ Jane A. Restani
Chief Judge Jane A. Restani
/s/ Richard K. Eaton
Judge Richard K. Eaton
/s/ Timothy C. Stanceu
Judge Timothy C. Stanceu
Dated: July 14, 2005
New York, New York