United States v. Am. Cas. Co. of Reading, Pa. , 49 F. Supp. 3d 1346 ( 2015 )


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  •                           Slip Op. 15-20
    UNITED STATES COURT OF INTERNATIONAL TRADE
    ________________________________
    UNITED STATES,                   :
    :
    Plaintiff,             :   Before: Nicholas Tsoucalas,
    :           Senior Judge
    v.                          :
    :   Consol. Court No.: 10-00119
    AMERICAN CASUALTY CO. OF        :
    READING, PENNSYLVANIA, RUPARI    :
    FOOD SERVICES, INC., and WILLIAM:
    VINCENT STILWELL, A/K/A “RICK” :
    STILWELL                         :
    :
    Defendants.            :
    _____________________         _ :
    OPINION and ORDER
    [Defendants’ Joint Motion to Strike Plaintiff’s Motion for Summary
    Judgment is denied. Defendants’ Joint Motion to Stay Summary
    Judgment until the Motion to Dismiss is resolved is granted.
    Defendants’ Consent Motion for an Extension of Time to Reply to
    Plaintiff’s Opposition is granted.]
    Dated: March 4, 2015
    Mikki Cottet, Senior Trial Counsel, Commercial Litigation Branch
    Civil Division, U.S. Department of Justice, of Washington, DC, for
    Plaintiff.   With her on the brief were Joyce R. Branda, Acting
    Assistant Attorney General, Jeanne E. Davidson, Director, and
    Patricia M. McCarthy, Assistant Director. Of counsel on the brief
    was Brian J. Redar, U.S. Customs and Border Protection Office of
    Associate Chief Counsel, Long Beach, CA.
    Peter A. Quinter, Gray Robinson, P.A., of Miami, FL, and Lawrence
    M. Friedman, Barnes Richardson & Colburn, of Chicago, IL, for
    Defendants Rupari Food Services, Inc. and William Vincent Stilwell
    a/k/a “Rick” Stilwell.
    Frances P. Hadfield, Grunfeld, Desiderio, Lebowitz, Silverman &
    Klestadt, LLP, for Defendant American Casualty Co. of Reading,
    Pennsylvania.
    Consol. Court No. 10-00119                                         Page 2
    Tsoucalas, Senior Judge: The issue before the court is
    whether to grant American Casualty Co. of Reading Pennsylvania,
    Rupari Food Services Inc., and William Vincent Stilwell a/k/a
    “Rick” Stilwell’s (collectively “Defendants”) Motion to Strike
    Plaintiff’s Motion for Summary Judgment and Opposition to Motion
    to Dismiss; or in the alternative, stay the Motion for Summary
    Judgment until Defendants’ Motion to Dismiss is resolved.
    On October 27, 2014, this court ordered the following:
    that Defendants file a Motion to Substitute a Revised Motion to
    Dismiss within seven days of the order; that Plaintiff’s response
    shall be filed on or before January 15, 2015; and “any additional
    dispositive motions shall be filed within 45 days after a decision
    denying in whole or in part Defendants’ motion to dismiss . . . .”
    Order at 1-2, October 27, 2014, ECF No. 71.
    Defendants filed their revised Motion to Dismiss on
    November 3, 2014. Defs.’ Mot. to Dismiss, November 3, 2014, ECF
    No. 76.    On January 15, 2015, Plaintiff filed a Motion for Summary
    Judgment and Opposition to the Motion to Dismiss. Pl.’s Mot. For
    Summ. J. and Opp’n to Mot. to Dismiss, January 15, 2015, ECF No.
    79.
    On January 22, 2015, Defendants filed a Joint Motion to
    Strike    Plaintiff’s   Motion   for   Summary   Judgment,   or   in   the
    alternative, to stay further action on the Motion for Summary
    Consol. Court No. 10-00119                                         Page 3
    Judgment until the Motion to Dismiss is resolved.          Defs.’ Joint
    Mot. to Strike Pl.’s Mot. for Summ. J. and Consent Mot. for an
    Extension of Time, January 22, 2015, ECF No. 82 (“Defs.’ Br.”).
    Additionally, the parties consented to an extension of time for
    the Defendants to reply to Plaintiff’s Opposition to Defendants’
    Motion to Dismiss.   
    Id. “The granting
    of 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.”        Jimlar
    Corp. v. United States, 
    10 CIT 671
    , 673, 
    647 F. Supp. 932
    , 934
    (1986). Motions to strike are a drastic remedy that are not favored
    and infrequently granted.     Ta Chen Stainless Steel Pipe Co. v.
    United States, 
    31 CIT 794
    , 810 (2007) (not reported in Federal
    Supplement). Accordingly, “courts will not grant motions 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.”    Jimlar 
    Corp., 10 CIT at 673
    .
    The   Defendants   argue   that   the   court   should   strike
    Plaintiff’s Motion for Summary Judgment, because the motion has
    “referenced new information not referenced in the pleadings and
    not previously disclosed to the parties for which the authenticity
    and factual accuracy have not been determined.” Defs.’ Br. at 6.
    The Defendants contend that such information would prejudice the
    court. 
    Id. The Defendants
    point to two specific examples of this
    Consol. Court No. 10-00119                                                Page 4
    in Plaintiff’s Motion for Summary Judgment: (1) the Declaration of
    Dr. Greg Lutz, to support the allegation that the crawfish did not
    originate in Thailand; (2) the Declaration of Richard Porter which
    references an unrecorded conversation with a Rupari salesperson
    regarding the origin of the crawfish.              
    Id. First, with
    respect to Dr. Greg Lutz, Defendants claim
    that     his    identity    was   not    disclosed   during      discovery.    
    Id. Plaintiff counters
    that it was not required to disclose Dr. Greg
    Lutz’s    identity     to   the      Defendants,   and     the   Declaration    is
    consistent with other record evidence before the court which
    remains unchallenged by Defendants. Resp. to Defs.’ Mot. to Strike
    at 6-7, February 10, 2015, ECF No. 89 (“Pl.’s Br.”).
    It appears from the exhibits submitted by Plaintiff that
    Dr. Greg Lutz’s identity was not disclosed during discovery,
    however, USCIT Rule 26(a)(2)(c) requires the disclosure of experts
    ninety days before the date set for trial, unless ordered otherwise
    by the Court. 
    Id. at Ex.
    1, 2; USCIT R. 26 (a)(2)(c). Here, the
    court has not set a date for trial and Defendants have not shown
    that the court ordered disclosure of Dr. Greg Lutz’s identity.
    Defs.’ Br. at 1-9.          Thus, Plaintiff was under no obligation to
    disclose       Dr.   Greg   Lutz’s    identity.    USCIT    R.   26   (a)(2)(c).
    Nevertheless, Defendants should have the opportunity to depose Dr.
    Greg Lutz and review his credentials and publications before having
    to respond to Plaintiff’s Motion for Summary Judgment.                See Baron
    Consol. Court No. 10-00119                                                   Page 5
    Services Inc. v. Media Weather Innovations LLC, 
    717 F.3d 907
    , 908-
    913 (Fed. Cir. 2013) (vacating summary judgment order as premature,
    where Plaintiff did not have an opportunity to depose two witnesses
    who   provided     affidavits    in    support   of    a   motion   for   summary
    judgment).
    Second,      Defendant,    American      Casualty,     argues    that
    Plaintiff    did    not    previously    disclose      Mr.    Richard     Porter’s
    identity or the contents of his Declaration.                   Defs.’ Br. at 6.
    Moreover, Defendants collectively claim that the Declaration was
    neither mentioned in the Complaint, nor related to any factual
    allegation in the Complaint. 
    Id. As such,
    Defendants believe that
    this Declaration will prejudice the court.                    
    Id. In contrast,
    Plaintiff insists that it disclosed Mr. Richard Porter’s identity
    to all Defendants twice. Pl.’s Br. at 7.
    The   court     rejects     Defendants’         arguments.       Upon
    examination of the discovery materials, the court finds that
    Plaintiff disclosed the identity of Mr. Richard Porter to all
    Defendants in its Amended Initial Disclosures on March 25, 2013,
    and in its Second Amended Initial disclosures on July 25, 2013.
    Pl.’s Br. at Ex. 1, 2. Additionally, Defendants, in their Consent
    Motion to Amend the Scheduling Order, explicitly referred to Mr.
    Richard Porter. Consent Mot. to Amend Scheduling Order at 2, April
    12, 2013, ECF No. 32.         This reference further corroborates that
    Defendants knew Mr. Richard Porter’s identity. See 
    id. Consol. Court
    No. 10-00119                                                Page 6
    In deciding a motion to dismiss, a Court may consider
    documents not attached to the complaint where the authenticity of
    those documents is not in question, and the factual allegations of
    the complaint revolve around the documents.              Young v. Lepone, 
    305 F.3d 1
    , 11 (1st Cir. 2002). Here, although Mr. Richard Porter’s
    Declaration was not attached to the Complaint, the Declaration is
    related to the factual allegation in the Complaint that Rupari and
    its employees knew that the crawfish tail meat did not originate
    in Thailand. Compl. at ¶30, June 20, 2011, ECF No. 2. Accordingly,
    the court may consider the Declaration.              See 
    Young, 305 F.3d at 11
    .
    Finally, Defendants argue that Plaintiff’s Motion for
    Summary Judgment is premature based upon the court’s Scheduling
    Order of October 27, 2014. Defs.’ Br. at 4.                The court agrees.
    The court’s Scheduling Order of October 27, 2014, requires that
    the   court    rule   upon   the   Motion   to   Dismiss   before   any   other
    dispositive motions are filed by either party. Order at 1-2.
    Furthermore, the order specifically states that any additional
    dispositive motions should be filed within 45 days after a decision
    denying in whole or in part Defendants’ Motion to Dismiss. 
    Id. (Emphasis added).
    On this basis alone, Plaintiff’s Motion for
    Summary Judgment is premature and consequently improper. See 
    id. Notwithstanding Plaintiff’s
        improper   filing     of   the
    Motion   for    Summary      Judgment,   the     court   declines   to    strike
    Consol. Court No. 10-00119                                  Page 7
    Plaintiff’s brief in its entirety, because Plaintiff properly
    submitted its Opposition per the court’s October 27, 2014 order.
    See Jimlar 
    Corp., 10 CIT at 673
    (denying motion to strike and
    finding that motions to strike are a “drastic remedy.”)
    Accordingly, Defendants’ Motion to Strike is denied.
    Defendants’ Motion to Stay Further Action on Plaintiff’s Motion
    for Summary Judgment until the court issues a decision on the
    Motion to Dismiss is granted. No other dispositive motions will be
    considered until the Motion to Dismiss is ruled upon.     As such,
    Plaintiff shall refile its Opposition without the Motion for
    Summary Judgment within ten days of this Order. Defendants shall
    have fourteen days from the date Plaintiff resubmits its Opposition
    to file a Reply. Plaintiff shall have fourteen days, if necessary,
    from the date the Motion to Dismiss is denied, in whole or in part,
    to file an Amended Motion for Summary Judgment.   Defendants shall
    have forty-five days from the expiration of the fourteen day period
    to respond to Plaintiff’s Motion for Summary Judgment, and if
    necessary, file a Cross-Motion for Summary Judgment.
    Consol. Court No. 10-00119                                   Page 8
    ORDER
    Upon consideration of Defendants’ Motion to Strike or in
    the Alternative Stay Further Action on Plaintiff’s Motion for
    Summary Judgment until the Motion to Dismiss is resolved, the
    response to this motion and the papers and proceedings herein, it
    is hereby
    ORDERED that Defendants’ Motion to Strike is DENIED; it
    is further
    ORDERED that Defendants’ Motion to Stay Further Action
    on Plaintiff’s Motion for Summary Judgment until the court issues
    a decision on the Motion to Dismiss is GRANTED; it is further
    ORDERED that no other dispositive motions will be
    considered until the Motion to Dismiss is ruled upon; it is further
    ORDERED that Plaintiff shall refile its Opposition to
    the Motion to Dismiss without the Motion for Summary Judgment
    within ten days of this order; it is further
    ORDERED that Defendants shall have fourteen days from
    the date Plaintiff resubmits its Opposition to file a Reply; it is
    further
    ORDERED that Plaintiff shall have fourteen days, if
    necessary, from the date the Motion to Dismiss is denied, in whole
    or in part, to file an Amended Motion for Summary Judgment; it is
    further
    ORDERED that Defendants shall have forty-five days from
    the expiration of the fourteen day period to respond to Plaintiff’s
    Motion for Summary Judgment, and if necessary, file a Cross-Motion
    for Summary Judgment.
    SO ORDERED.
    __Nicholas Tsoucalas
    Nicholas Tsoucalas
    Senior Judge
    Dated: March 4, 2015_____
    New York, New York
    

Document Info

Docket Number: Consol. 10-00119

Citation Numbers: 2015 CIT 20, 49 F. Supp. 3d 1346, 37 I.T.R.D. (BNA) 1052, 2015 Ct. Intl. Trade LEXIS 19

Judges: Tsoucalas

Filed Date: 3/4/2015

Precedential Status: Precedential

Modified Date: 11/7/2024