Medline Industries, Inc. v. United States

Slip Op. 13- 70
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Nicholas Tsoucalas, Senior Judge
MEDLINE INDUSTRIES, INC., :
:
Plaintiff, :
:
v. : Court No.: 13-00031
:
UNITED STATES, :
:
Defendant, :
:
OPINION and ORDER
Held: Defendant’s motion to dismiss is granted and plaintiff’s
cross-motions to stay and to consolidate are denied.
Dated: May 30, 2013
Hodes Keating & Pilon (Lawrence R. Pilon and Michael G. Hodes)
for Medline Industries, Inc., Plaintiff.
Stuart F. Delery, Acting Assistant Attorney General; Jeanne E.
Davidson, Director, Patricia M. McCarthy, Assistant Director,
Commercial Litigation Branch, Civil Division, United States
Department of Justice (Douglas G. Edelschick); Office of the Chief
Counsel for Import Administration, United States Department of
Commerce, Scott D. McBride, Of Counsel, for the United States,
Defendant.
TSOUCALAS, Senior Judge: This case comes before the court on
defendant United States Department of Commerce’s (“Commerce”)
motion to dismiss plaintiff Medline Industries, Inc.’s (“Medline”)
complaint, Def.’s Mot. Dismiss, No. 13-00031, Dkt. No. 13 at 1
(“Def.’s Mot.”), and Medline’s cross-motions to stay Commerce’s
motion and consolidate the instant case (“Medline I”) with Medline
Industries, Inc. v. United States, No. 13-00070 (Ct. Int’l Trade
filed Feb. 18, 2013) (“Medline II”). See Pl.’s Resp. Mot. Dismiss,
Court No. 13-00031 Page 2
No. 13-00031, Dkt. No. 17 at 1 (“Pl.’s Resp.”). See also Pl.’s
Mot. Consolidate, No. 13-00031, Dkt. No. 18; Pl.’s Mot. Stay
Proceedings, No. 13-00031, Dkt. No. 19. Commerce argues that
Medline I “was filed prematurely and is duplicative of Medline’s
identical challenge in [Medline II].” Def.’s Mot. at 1. Medline
argues that at least one of its cases is jurisdictionally proper,
and therefore asks this court to stay Commerce’s motion and to
consolidate Medline I with Medline II to “avoid the necessity of
Medline being whipsawed on the jurisdictional issue and forced into
appealing a dismissal now to protect itself from a successful
jurisdictional challenge in [Medline II].” Pl.’s Resp. at 3. For
the following reasons, the court grants Commerce’s motion and
denies Medline’s cross-motions.
BACKGROUND
On November 14, 2012, Medline filed a scope ruling request
asking Commerce to determine that its hospital bed end panel
components are outside the scope of the antidumping duty order on
wooden bedroom furniture from the People’s Republic of China
(“PRC”). See Complaint, No. 13-00031, Dkt. No. 10 at 7 (“Compl.”).
See also Wooden Bedroom Furniture From the PRC: Final Results and
Final Rescission in Part, 77 Fed. Reg. 51,754 (Aug. 27, 2012) (the
“Order”). In a determination dated December 21, 2012, Commerce
found that the merchandise in question was within the scope of the
Order. See Wooden Bedroom Furniture from the PRC: Scope Ruling on
Court No. 13-00031 Page 3
Medline Industries, Inc.’s Hospital Bed End Panel Components, Inv.
No. A-570-890 (Dec. 21, 2012) (“Scope Ruling”).
On December 27, 2012, Commerce emailed a copy of the Scope
Ruling to Medline’s counsel. See Compl. at 2. Medline insists
that Commerce “confirmed to [Medline’s] legal counsel that there
would be no mailing other than the emailing on December 27, 2012.”1
Id. Relying on Commerce’s representations regarding the December
27 email, Medline commenced this action on January 18, 2013 to
appeal the results of the Scope Ruling. See id. at 3; Pl.’s Resp.
at 2; Summons, No. 13-00031, Dkt. No. 1 at 1.
On January 28, 2013, Commerce mailed a copy of the Scope
Ruling to Medline’s counsel. See Compl. at 2–3. In response to
this mailing, Medline also commenced Medline II to appeal the
results of the Scope Ruling.2 See Summons, No. 13-00070, Dkt. No.
1 at 1.
Commerce now moves to dismiss Medline I for lack of subject
matter jurisdiction or, alternatively, for failure to state a
claim. See Def.’s Mot. at 1. Specifically, Commerce argues that
this Court lacks jurisdiction because Medline filed Medline I
before commencement of the thirty-day window for filing an appeal
1
Commerce asserts that it did not mail the Scope Ruling at
that time “due to an apparent misunderstanding.” Def.’s Mot. at 2.
2
In its motion to dismiss Medline I, Commerce states multiple
times that Medline filed Medline II in a timely fashion following
the mailing of the Scope Ruling. See Def.’s Mot. at 2, 3.
Court No. 13-00031 Page 4
of a scope determination under section 516A(a)(2)(A)(ii) of the
Tariff Act of 1930.3 See id. at 3–4. Commerce also argues that
Medline I should be dismissed because Medline’s complaint is
“duplicative” of the complaint in Medline II. Id. at 2.
STANDARD OF REVIEW
“Subject matter jurisdiction constitutes a ‘threshold matter’
in all cases, such that without it, a case must be dismissed
without proceeding to the merits.” Demos v. United States, 31 CIT
789, 789 (2007) (not reported in the Federal Supplement) (citing
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998)).
“The burden of establishing jurisdiction lies with the party
seeking to invoke th[e] Court's jurisdiction.” Bhullar v. United
States, 27 CIT 532, 535, 259 F. Supp. 2d 1332, 1334 (2003) (citing
Old Republic Ins. Co. v. United States, 14 CIT 377, 379, 741 F.
Supp. 1570, 1573 (1990)).
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “For the purposes of a motion to dismiss, the
material allegations of a complaint are taken as admitted and are
to be liberally construed in favor of the plaintiff(s).” Humane
3
All further references to the Tariff Act of 1930 will be to
the relevant provisions of Title 19 of the United States Code, 2006
edition, and all applicable supplements thereto.
Court No. 13-00031 Page 5
Soc’y of the U.S. v. Brown, 19 CIT 1104, 1104, 901 F. Supp. 338,
340 (1995) (citing Jenkins v. McKeithen, 395 U.S. 411, 421–22
(1969)).
DISCUSSION
An action challenging a final scope ruling by Commerce must be
filed “[w]ithin thirty days after . . . the date of mailing” of
that scope ruling. 19 U.S.C. § 1516a(a)(2)(A)(ii). If a party
does not satisfy the terms of section 1516a(a)(2)(A)(ii), this
Court lacks jurisdiction over that party’s claim. See NEC Corp. v.
United States, 806 F.2d 247, 248 (Fed. Cir. 1986) (“The proper
filing of a summons to initiate an action in the Court of
International Trade is a jurisdictional requirement.”). “Since
section 1516a(a)(2)(A) specifies the terms and conditions upon
which the United States has waived its sovereign immunity in
consenting to be sued in the Court of International Trade, those
limitations must be strictly observed and are not subject to
implied exceptions.” Georgetown Steel Corp. v. United States, 801
F.2d 1308, 1312 (Fed. Cir. 1986). The Court’s jurisdiction over
this action turns on whether the email to Medline’s counsel on
December 27, 2012 constituted a “mailing” within the meaning of
section 1516a(a)(2)(A)(ii).
Medline argues that “th[is] Court has jurisdiction over at
least one of [Medline I and Medline II].” Pl.’s Resp. at 3.
Medline states that it “is unaware of any court decision holding
Court No. 13-00031 Page 6
that email notification does or does not satisfy 19 U.S.C. §
1516a(a)(2)(A)(ii).” Id. at 3–4. Given this fact and in light of
Commerce’s representations concerning the legal effect of the
December 27, 2012 email, Medline asks the court to stay Commerce’s
motion and consolidate Medline I with Medline II. Id. at 4.
Medline insists that this result “spares Medline the necessity of
filing a costly and unnecessary appeal of an adverse jurisdictional
ruling in [Medline I], just to protect itself from possible
jurisdictional challenges in [Medline II].” Id.
Medline has not met the burden of establishing this Court’s
jurisdiction over Medline I. In light of its obligation to
construe the terms of section 1516a(a)(2)(A) strictly, see
Georgetown Steel, 801 F.2d at 1312, the court refuses to extend the
definition of “mailing” to include email messages. See Bond St.,
Ltd. v. United States, 31 CIT 1691, 1695, 521 F. Supp. 2d 1377,
1381 (2007) (holding that a fax was not a “mailing” within the
meaning of 19 U.S.C. § 1516a(a)(2)(A)(ii)); cf. Tyler v. Donovan,
3 CIT 62, 65–66, 535 F. Supp. 691, 693–94 (1982) (mailed
notification of a final determination was insufficient to trigger
filing period when statute required publication in the Federal
Register). Although email is a widespread means of communication,
Medline has not demonstrated that an email is sufficient to
commence the filing period under section 1516a(a)(2)(A)(ii).
Accordingly, the thirty-day period for Medline to appeal the
Court No. 13-00031 Page 7
results of the Scope Ruling was triggered by the January 28, 2013
mailing of the Scope Ruling to Medline’s counsel. See 19 U.S.C. §
1516a(a)(2)(A)(ii). Because Medline filed Medline I prematurely,
the court must dismiss for lack of subject matter jurisdiction.4
See W. Union Tel. Co. v. FCC, 773 F.2d 375, 381 (D.C. Cir. 1985)
(dismissing for lack of jurisdiction where plaintiff filed petition
for review before the 28 U.S.C. § 2344 filing window opened); Bond
St., 31 CIT at 1695, 521 F. Supp. 2d at 1381. Although the court
is wary of granting Commerce’s motion given the alleged
misrepresentations to Medline’s counsel, this concern is tempered
by the fact that Medline initiated Medline II in a timely fashion
following the January 28, 2013 mailing of the Scope Ruling. See
Def.’s Mot. at 2, 3.
Also before the court are Medline’s cross-motions to stay
Commerce’s motion to dismiss, see Pl.’s Mot. Stay, No. 13-00031,
Dkt. No. 19 at 1, and to consolidate Medline I with Medline II.
See Pl.’s Mot. Consolidate, No. 13-00031, Dkt. No. 18 at 1. In
light of the court’s decision to dismiss Medline I for lack of
subject matter jurisdiction, these motions are denied as moot. See
Hitachi Home Elecs. (Am.), Inc. v. United States, 34 CIT __, __,
704 F. Supp. 2d 1315, 1322 (2010), aff’d 661 F.3d 1343 (Fed. Cir.
2011) (denying plaintiff’s cross-motion for consolidation as moot
4
Because the court does not have subject matter jurisdiction
over Medline I, the court will not rule on whether Medline stated
a claim in its complaint.
Court No. 13-00031 Page 8
when dismissing for lack of subject matter jurisdiction).
CONCLUSION
For the foregoing reasons, Medline’s complaint is dismissed
without prejudice due to lack of subject matter jurisdiction, and
Medline’s cross-motions to stay and to consolidate are denied as
moot.
ORDER
In accordance with the above, it is hereby
ORDERED that defendant’s motion to dismiss is GRANTED; and it
is further
ORDERED that plaintiff’s complaint (Dkt. No. 10) in this
action is dismissed without prejudice; and it is further
ORDERED that plaintiff’s cross-motion to consolidate (Dkt. No.
18) is DENIED; and it is further
ORDERED that plaintiff’s cross-motion to stay (Dkt. No. 19)
is DENIED.
/s/ Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Dated: May 30, 2013
New York, New York