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

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