National Fisheries Institute, Inc. v. United States Bureau of Customs & Border Protection

Slip Op. 08-136
UNITED STATES COURT OF INTERNATIONAL TRADE
NATIONAL FISHERIES INSTITUTE,
INC., ET AL.,
Plaintiffs,
Before: Timothy C. Stanceu, Judge
v.
Court No. 05-00683
UNITED STATES BUREAU OF
CUSTOMS AND BORDER
PROTECTION,
Defendant.
PUBLIC OPINION & ORDER
[Denying, without prejudice, plaintiffs’ motion to substitute parties]
Dated: December 17, 2008
Steptoe & Johnson LLP (Eric C. Emerson, Gregory S. McCue, and Michael A. Pass) for
plaintiffs.
Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia
M. McCarthy, Assistant Director, Barbara S. Williams, Attorney in Charge, International Trade
Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice
(Stephen C. Tosini); Chi S. Choy, Office of Assistant Chief Counsel, International Trade
Litigation, Customs and Border Protection, United States Department of Homeland Security, of
counsel, for defendant.
Stanceu, Judge: Plaintiffs move under USCIT Rule 25(c) to substitute a party in this
litigation. Defendant opposes the motion, arguing that the substitution plaintiffs propose is
prohibited by the Anti-Assignment Act, 31 U.S.C. § 3727 (2000). The court will deny plaintiffs’
motion because plaintiffs have not alleged facts under which the proposed substitution of parties
would be permissible.
Court No. 05-00683 PUBLIC Page 2
Plaintiffs seek to substitute High Liner Foods Incorporated (“High Liner”) for current
plaintiff Ocean Cuisine International, a division of FPI Limited (“FPI”). Mot. to Substitute Party
(Public) 1 (“Pls.’ Mot. (Public)”). In support of the motion, plaintiffs cite FPI’s December 20,
2007 press release announcing that High Liner purchased certain of FPI’s assets, specifically,
FPI’s “North American Marketing and Manufacturing business, including value added
processing facilities in Danvers, Massachusetts and Burin, Newfoundland and Labrador.” Id.
at 1-2. Plaintiffs also state that FPI’s importer numbers were terminated on January 14, 2008 and
that thereafter, imports of subject merchandise were made using High Liner’s importer number
and continuous entry bond. Id. at 2. Plaintiffs state that “[t]his substitution in no way seeks to
enlarge or amend Plaintiffs’ amended complaint to include bonds other than those listed” and
that they “seek only to substitute FPI with High Liner with respect to those bonds already subject
to this proceeding . . . .” Id.USCIT Rule 25(c) provides that “[i]n case of any transfer of interest, the action may be
continued by or against the original party, unless the court upon motion directs the person to
whom the interest is transferred to be substituted in the action or joined with the original party.”
USCIT R. 25(c). To grant plaintiffs’ motion, the court first must identify an interest that has
been transferred from FPI to High Liner and that stands to be affected by the outcome of this
litigation. On the facts plaintiffs have stated in their motion, the court is unable to identify such
an interest.
This case involves, inter alia, challenges to bond sufficiency determinations by United
States Customs and Border Protection. Plaintiffs acknowledge that High Liner’s participation in
this case would be confined to bonds already subject to this litigation. Plaintiffs, however, have
Court No. 05-00683 PUBLIC Page 3
not informed the court whether High Liner is now obligated to the United States on the entries
that are covered by those bonds, on which entries High Liner was not the importer of record. Nor
have plaintiffs explained whether, or how, High Liner became the principal on those bonds.1
Although plaintiffs state that “[t]he name Ocean Cuisine International has been retired,” it
appears to the court that the interest in question may still reside with FPI. The court notes, in this
regard, that plaintiffs state a fact causing the court to conclude that Ocean Cuisine International
may not have capacity to sue in this case. Plaintiffs have represented that Ocean Cuisine
International is an operating division of FPI, formerly known as Fishery Products International
Ltd. Pls.’ Mot. (Public) 1; Form 13, Feb. 24, 2006. An operating division of a corporation,
which is not a separate legal entity, would not have the capacity to sue. See EEOC v. St. Francis
Xavier Parochial School, 77 F. Supp. 2d 71, 75-76 (D.D.C. 1999) (discussing “a line of
precedent holding that unincorporated divisions of a corporation lack legal capacity to be sued”);
USCIT R. 17(b). On the facts as stated by plaintiffs in support of their motion, the court has no
reason to conclude that FPI is no longer the principal on the bonds at issue. The fact that the
name Ocean Cuisine International is no longer in use does not lend support to plaintiffs’ motion.
In conclusion, the facts stated in plaintiffs’ motion do not afford the court a basis to
conclude that the proposed substitution of High Liner for FPI would satisfy USCIT Rule 25(c).
The court, therefore, does not reach the issue of whether the proposed assignment would violate
1
Plaintiffs state in their motion that “High Liner has [
].” Mot. to
Substitute Party (Confidential) 2. Plaintiffs’ statement, [
] does not resolve the
court’s questions concerning High Liner’s interest in this litigation.
Court No. 05-00683 PUBLIC Page 4
the prohibitions in 31 U.S.C. § 3727 with respect to assignment of claims against the United
States.
For the foregoing reasons, and in consideration of all submissions and proceedings
herein, it is hereby
ORDERED that plaintiffs’ Motion to Substitute Party, filed on October 14, 2008, is
hereby DENIED without prejudice.
/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge
Dated: December 17, 2008
New York, New York