Tianjin Magnesium International Co. v. United States

Slip Op. 12- 158
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Nicholas Tsoucalas, Senior Judge
TIANJIN MAGNESIUM INTERNATIONAL :
CO., LTD., :
:
Plaintiff, :
:
v. : Consol. Court No.: 11-00006
:
UNITED STATES, :
:
Defendant, :
:
and :
:
US MAGNESIUM, LLC, :
:
Defendant-Intervenor. :
:
OPINION AND ORDER
Held: Plaintiff’s motion for reconsideration is denied.
Dated: December 21, 2012
Riggle & Craven, (David A. Riggle) for Tianjin Magnesium
International Co., Ltd., Plaintiff.
Stuart F. Delery, Acting Assistant Attorney General; Jeanne E.
Davidson, Director, Claudia Burke, Assistant Director, Commercial
Litigation Branch, Civil Division, United States Department of
Justice (Renee Gerber); Office of Chief Counsel for Import
Administration, United States Department of Commerce, Thomas
M.Beline, Of Counsel, for the United States, Defendant.
King & Spalding, LLP, (Stephen A. Jones and Jeffrey B.
Denning) for US Magnesium, LLC, Defendant-Intervenor.
TSOUCALAS, Senior Judge: In Tianjin Magnesium International
Co. v. United States, 36 CIT , 844 F. Supp. 2d 1342 (2012)
(“Tianjin I”), this court remanded to the Department of Commerce
(“Commerce”) in Pure Magnesium from the People’s Republic of China:
Court No. 11-00006 Page 2
Final Results of the 2008–2009 Antidumping Duty Administrative
Review of the Antidumping Order, 75 Fed. Reg. 80,791 (Dec. 23,
2010). Specifically, the court directed Commerce to reconsider its
inconsistent application of adverse facts available against
plaintiff Tianjin Magnesium International Co. (“TMI”) despite
persistent fraudulent conduct in multiple proceedings below. The
court also directed parties to file comments within thirty days
from the date the results were filed and to file any rebuttal
comments within fifteen days thereafter. Commerce filed the remand
results on August 8, 2012.
On October 1, 2012, TMI filed a consent motion for extension
of time, ostensibly to allow it additional time to receive and
review the official record pertaining to the remand determination.
Dkt. 92 at 1–2. The court granted the motion, establishing October
15, 2012 as the comment deadline and November 9, 2012 as the
response deadline. Defendant-intervenor US Magnesium LLC timely
filed its comments in support of the remand determination on
October 15, 2012, and Commerce timely responded thereto on November
6, 2012. TMI failed to comment or respond at all. As no party
objected, this court upheld the remand determination in its
entirety in Tianjin Magnesium International Co. v. United States,
36 CIT , Slip. Op. No. 12-143 (Nov. 21, 2012) (not reported in
the Federal Supplement) (“Tianjin II”).
Even though it did not object to the remand determination
Court No. 11-00006 Page 3
within the time frame it requested, Dkt. 92 at 1–3, TMI now moves
for reconsideration of this court’s order in Tianjin II under USCIT
R. 59. Pl.’s Mot. Recons. TMI bases its motion on USCIT R. 46,
which states that “[f]ailing to object does not prejudice a party
who had no opportunity to do so when the ruling or order was made.”
Id. at 2 (quoting USCIT R. 46) (emphasis added, alteration in
original).
Reconsideration under USCIT R. 59 is within the court’s sound
discretion. Dorsey v. U.S. Sec’y of Agric., 32 CIT 270, 270 (2008)
(not reported in the Federal Supplement). Although this Court 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)), “[t]he 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)).
Despite its curious assertion to the contrary, TMI had a full
opportunity to present its arguments before the deadline it
requested. As TMI fails now to present any new factual or legal
authority that was unavailable at the time its objections were due,
see Ford Motor Co. v. United States, 34 CIT , , 751 F. Supp. 2d
1316, 1318 (2010) (denying reconsideration where, among other
things, movant failed to present new factual or legal authority
Court No. 11-00006 Page 4
demonstrating that prior order was manifestly erroneous), TMI’s
motion for reconsideration must be denied.
As a final courtesy, TMI is once again warned that its
frivolous conduct is unacceptable and potentially within the scope
of the court’s authority to impose sanctions under USCIT R. 11(c).
See USCIT R. 11(b)(2), (c).
ORDER
In accordance with the foregoing, it is hereby
ORDERED that plaintiff Tianjin Magnesium International Co.,
Ltd.’s motion for rehearing is denied, and it is further
ORDERED that defendant Department of Commerce and defendant-
intervenor US Magnesium LLC shall have twenty (20) days after the
filing of this order to submit their affidavits of itemized costs
and counsel fees pursuant to USCIT R. 54(d) as the court
previously directed in Tianjin Magnesium International Co. v.
United States, 36 CIT , Slip. Op. No. 12-143 (Nov. 21, 2012);
and it is further
ORDERED that plaintiff Tianjin Magnesium International Co.
Ltd. shall have fourteen (14) days to respond thereto.
/s/ NICHOLAS TSOUCALAS
Nicholas Tsoucalas
Senior Judge
Dated: December 21, 2012
New York, New York