Marvin Furniture (Shanghai) Co., Ltd. v. United States

Slip Op. 13- 3
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Nicholas Tsoucalas, Senior Judge
MARVIN FURNITURE (SHANGHAI) CO. :
LTD., :
:
Plaintiff, :
:
v. : Court No.: 12-00100
:
UNITED STATES, :
:
Defendant, :
:
and :
:
AMERICAN FURNITURE MANUFACTURERS :
COMMITTEE FOR LEGAL TRADE and :
VAUGHAN-BASSETT FURNITURE :
COMPANY, INC., :
:
Defendant-Intervenors. :
:
OPINION
Held: Marvin Furniture (Shanghai) Co. Ltd.’s motion for rehearing
is denied.
Dated: January 7, 2013
Neville Peterson, LLP, (John M. Peterson and Richard F.
O’Neill) for Marvin Furniture (Shanghai) Co. Ltd., Plaintiff.
Stuart F. Delery, Acting Assistant Attorney General; Jeanne E.
Davidson, Director, Patricia M. McCarthy, Assistant Director, Civil
Division, United States Department of Justice, (Carrie A.
Dunsmore); Shana Hofstetter, Of Counsel, Office of the Chief
Counsel for Import Administration, United States Department of
Commerce, for the United States, Defendant.
King & Spalding, LLP, (Joseph W. Dorn, J. Michael Taylor, and
P. Lee Smith) for American Furniture Manufacturers Committee for
Legal Trade and Vaughan-Bassett Furniture Company, Inc., Defendant-
Intervenors.
Court No. 12-00100 Page 2
TSOUCALAS, Senior Judge: Plaintiff Marvin Furniture (Shanghai)
Co. Ltd. (“Marvin”) seeks reconsideration of Marvin Furniture
(Shanghai) Co. v. United States, 36 CIT , 867 F. Supp. 2d 1302(2012) (“Marvin I”) under USCIT R. 59. Marvin I upheld defendant
Department of Commerce’s (“Commerce”) decision to rescind a new
shipper review as a consequence of Marvin’s failure to disclose the
first entry of its subject exports in the manner prescribed in 19
C.F.R. § 351.214(b)(2)(iv) (2012). Marvin I, 36 CIT at , 867 F.
Supp. 2d at 1307–09; see Wooden Bedroom Furniture From the People’s
Republic of China: Final Rescission of Antidumping New Shipper
Review, 77 Fed. Reg. 21,536, 21,537–38 (Apr. 10, 2012). Commerce
and defendant-intervenors American Furniture Manufacturers
Committee for Legal Trade and Vaughan-Bassett Furniture Company,
Inc. oppose the motion. The court assumes familiarity with the
record and proceedings to date.
Reconsideration under USCIT R. 59 is within the court’s
discretion. Dorsey v. U.S. Sec’y of Agric., 32 CIT 270, 270 (2008)
(not reported in the Federal Supplement). Although it may exercise
such discretion “to rectify ‘a significant flaw in the conduct of
the original proceeding,’” id. (quoting W.J. Byrnes & Co. v. United
States, 68 Cust. Ct. 358, 358 (1972)), “a court should not disturb
its prior decision unless it is ‘manifestly erroneous.’” Id.(citing Starkey Labs., Inc. v. United States, 24 CIT 504, 505, 110
F. Supp. 2d 945, 946–47 (2000); Volkswagen of Am., Inc. v. United
Court No. 12-00100 Page 3
States, 22 CIT 280, 282, 4 F. Supp. 2d 1259, 1261 (1998)). “The
purpose of a rehearing is not to relitigate the case . . . .” NEC
Corp. v. Dep’t of Commerce, 24 CIT 1, 2, 86 F. Supp. 2d 1281, 1282
(2000) (quoting Asociacion Colombiana de Exportadores de Flores v.
United States, 22 CIT 2, 2, 994 F. Supp. 393, 394 (1998)).
Marvin claims that “the [c]ourt found, as a fact, that Marvin
was the importer of the unreported . . . entries which formed the
basis for the rescission.” Pl.’s Mot. Recons. at 2 (“Pl.’s Br.”).
In support of this assertion, Marvin quotes portions of Marvin I
where the court joined the words “Marvin” and “entry” using phrases
like “Marvin’s entries” and “Marvin made entries.” Id. at 6
(quoting Marvin I, 36 CIT at , 867 F. Supp. 2d at 1305–06, 1308).
Marvin alleges that “[e]very single one of the [c]ourt’s findings
ascribing the September 2010 entries to Marvin is incorrect, as a
matter of fact,” because a third party, Triple Play Services, Inc.,
acted as the importer of record for the September 2010 entries.
Id. at 2 (emphasis omitted). Marvin seeks reconsideration “to the
extent Marvin’s involvement with, or knowledge of, the 2010 Triple
Play entries is material to the Court’s decision.” Id. at 5.
Marvin grossly mischaracterizes the language in Marvin I —
the court did not in any way state or imply that Marvin was the
importer of record for the September 2010 entries. Marvin I, 36
CIT at , 867 F. Supp. 2d at 1305–09. The court attached the term
“entries” to Marvin so as to communicate the undisputed fact that
Court No. 12-00100 Page 4
the entries described goods that Marvin produced. Id. Marvin I is
not the first judicial opinion to assign grammatical ownership of
the term “entries” to an exporter so as to convey its relationship
to an entered good. See, e.g., American Signature, Inc. v. United
States, 598 F.3d 816, 819–22 (Fed. Cir. 2010) (discussing exporter
“Dare Group’s 2006 entries” even though another company acted as
the importer of record); United States v. Great Am. Ins. Co. of
N.Y., 35 CIT , , 791 F. Supp. 2d 1337, 1343–46, 1349, 1361–68
(2011) (repeatedly attaching grammatical ownership of the term
“entry” to the names of various exporters even though none acted as
the importer of record); Viraj Forgings Ltd. v. United States, 26
CIT 513, 513–14, 516, 206 F. Supp. 2d 1288, 1289–90, 1292 (2002)
(attaching grammatical ownership of the word “entries” to the
exporter in one instance, and to both the exporter and the importer
of record in another). Consequently, Marvin’s request to
reconsider on the basis of factual error must be denied for want of
any such error.
Marvin’s remaining three arguments repeat those it made
earlier in support of its motion for judgment on the agency
record.1 Because it “has failed to establish an appropriate basis
1
Specifically, Marvin argued that (1) the purpose of new
shipper review initiation documents is solely to determine whether
a shipper is in fact a “new” shipper, Pl.’s Mot. J. Agency R. at
18–21, 29–34 (“Pl.’s MJAR”); (2) its subsequent responses to
Commerce’s questionnaires effectively corrected the deficient
initiation request pursuant to 19 U.S.C. § 1677m(d), Pl.’s MJAR at
6–8, 25–27, 33–34; Pl.’s Reply Supp. MJAR at 11–13; and (3) “[a]s
Court No. 12-00100 Page 5
for granting a rehearing,” see Xerox Corp. v. United States, 20 CIT
823, 823–24 (1996) (not reported in the Federal Supplement); Ford
Motor Co. v. United States, 34 CIT , , 751 F. Supp. 2d 1316,
1318 (2010), Marvin’s motion for reconsideration on its remaining
arguments must be denied.
ORDER
In accordance with the foregoing, it is hereby
ORDERED that plaintiff Marvin Furniture (Shanghai) Co. Ltd.’s
motion for rehearing is denied.
/s/NICHOLAS TSOUCALAS
Nicholas Tsoucalas
Senior Judge
Dated: January 7, 2013
New York, New York
a matter of law, [new shipper reviews] are not initiated until
Commerce has published the notice of the review in the Federal
Register,” meaning that “Commerce had all the information it
requested on or before the [initiation] date.” Pl.’s Reply Supp.
MJAR at 14–16. The court considered and rejected each of these
arguments in Marvin I. Marvin I, 36 CIT at , 867 F. Supp. 2d at
1306–09; see Pl.’s Br. at 6–15 (seeking reconsideration of the
same).