Tak Fat Trading Co. v. United States

Slip Op. 00 - 161
UNITED STATES COURT OF INTERNATIONAL TRADE
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TAK FAT TRADING CO., MEI WEI FOODS INDUS-:
TRY CO., LTD., LEUNG MI INTERNATIONAL,
TAK YEUN CORP. and GENEX INTERNATIONAL :
CORP.,
:
Plaintiffs,
:
v.
:
UNITED STATES, Court No. 00-07-00360
:
Defendant,
:
-and-
:
COALITION FOR FAIR PRESERVED MUSHROOM
TRADE, :
Intervenor-Defendant. :
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Memorandum & Order
[Plaintiffs' motion to stay this action denied.]
Dated: December 12, 2000
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
(Peter W. Klestadt, Erik D. Smithweiss and Mark E. Pardo) for the
plaintiffs.
David W. Ogden, Assistant Attorney General; David M. Cohen,
Director, and Velta A. Melnbrencis, Assistant Director, Commer-
cial Litigation Branch, Civil Division, U.S. Department of Jus-
tice; and Office of Chief Counsel for Import Administration, U.S.
Department of Commerce (John F. Koeppen), of counsel, for the
defendant.
Collier Shannon Scott, PLLC (Michael J. Coursey and Adam H.
Gordon) for the intervenor-defendant.
AQUILINO, Judge: The plaintiffs, which have brought
this action pursuant to 19 U.S.C. §1516a(a)(2)(A)(ii) and (B)(vi)
Court No. 00-07-00360 Page 2
and 28 U.S.C. §1581(c) for judicial review of a final ruling by
the International Trade Administration, U.S. Department of Com-
merce ("ITA") as to the scope of its Final Determination of Sales
at Less Than Fair Value and Antidumping Duty Order: Certain Pre-
served Mushrooms From the People's Republic of China, 64 Fed.Reg.
8,308 (Feb. 19, 1999), now move for a stay of proceedings herein
pending final resolution of Tak Yuen Corp. v. United States, CIT
No. 00-10-00490, an action just commenced to contest classifica-
tion by the Customs Service under the Harmonized Tariff Schedule
of the United States ("HTSUS") of certain preserved mushrooms
from China. The plaintiffs state that their
instant scope litigation should be stayed pending a
decision in Tak Yuen . . . because: (1) the outcome
of th[at] tariff classification case will directly
bear upon the scope litigation, (2) the classifica-
tion issue raised in Tak Yuen cannot be properly
resolved in the scope litigation, (3) plaintiffs in
the scope litigation risk irreparable harm if the
scope litigation is decided prior to a decision in
the tariff classification case, and (4) defendants
suffer no real harm from a temporary stay of the
scope litigation.
Plaintiffs' Motion to Stay, p. 6.
Neither the defendant nor the intervenor-defendant
consents to this motion.
I
In Neenah Foundry Co. v. United States, 24 CIT ,
, Slip Op. 00-33 (March 31, 2000), this court had occasion to
point to the long-standing principle that a party plaintiff is
Court No. 00-07-00360 Page 3
the master of its complaint1, but also that
the power to stay proceedings is incidental to the
power inherent in every court to control the dispo-
sition of the causes on its docket with economy of
time and effort for itself, for counsel, and for
litigants.
Landis v. North American Co., 299 U.S. 248, 254 (1936). See,
e.g., American Life Ins. Co. v. Stewart, 300 U.S. 203, 215 (1937)
("In the exercise of a sound discretion[, a court] may hold one
lawsuit in abeyance to abide the outcome of another, especially
where the parties and the issues are the same"); Cherokee Nation
of Okla. v. United States, 124 F.3d 1413, 1416 (Fed.Cir. 1997)
("When and how to stay proceedings is within the sound discretion
of the trial court").
In exercising this discretion, a court "must weigh
competing interests and maintain an even balance"2, taking into
account those of the plaintiff, the defendant, non-parties or
the public, and even itself. See, e.g., Hill v. Mitchell, 30
F.Supp.2d 997, 1000 (S.D.Ohio 1998); Schwartz v. Upper Deck Co.,
967 F.Supp. 405, 416 (S.D.Cal. 1997); Koulouris v. Builders
Fence Co., 146 F.R.D. 193, 194 (W.D.Wash. 1991), citing Golden
Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87
1
Slip Op. 00-33, p. 3, citing City of Chicago v. Int'l
College of Surgeons, 522 U.S. 156, 164 (1997); Caterpillar Inc.
v. Williams, 482 U.S. 386, 398-99 (1987); Healy v. Sea Gull Spe-
cialty Co., 237 U.S. 479, 480 (1914); The Fair v. Kohler Die &
Specialty Co., 228 U.S. 22, 25 (1912).
2
Landis v. North American Co., 299 U.S. 248, 254-55 (1936).
Court No. 00-07-00360 Page 4
F.R.D. 53, 56 (E.D.Penn. 1980); McDonald v. Piedmont Aviation,
Inc., 625 F.Supp. 762, 767 (S.D.N.Y. 1986). However,
the suppliant for a stay must make out a clear case of
hardship or inequity in being required to go forward,
if there is even a fair possibility that the stay for
which he prays will work damage to some one else.
Landis v. North American Co., 299 U.S. at 255. In other words,
a movant must "make a strong showing" that a stay is necessary
and that "the disadvantageous effect on others would be clearly
outweighed." Commodity Futures Trading Comm'n v. Chilcott Port-
folio Management, Inc., 713 F.2d 1477, 1484 (10th Cir. 1983).
A
The ITA excluded from the scope of the investigation
that resulted in its affirmative determination of sales at less
than fair value, 63 Fed.Reg. 72,255 (Dec. 31, 1998), as amended,
supra,
"marinated", "acidified" or "pickled" mushrooms,
which are prepared or preserved by means of vine-
gar or acetic acid, but may contain oil or other
additives.
63 Fed.Reg. at 72,256; 64 Fed.Reg. at 8,309. According to the
complaint filed in Tak Yuen Corp. v. United States, CIT No. 00-
10-00490, Exhibit E to plaintiff's motion for a stay hereof,
Customs denied entry to this country of some 300 containers of
mushrooms of the species agaricus bisporus marinated
in water, sugar, vinegar, acetic acid, citric acid
and several other ingredients[]
on the ground that they were within the ambit of the above-cited
ITA antidumping-duty order and thereby subject to deposit of such
Court No. 00-07-00360 Page 5
additional duty thereunder, which was not tendered along with the
imposts otherwise deemed owing. The Tak Yuen Corp. complaint
further avers that, while the Service classified the goods under
HTSUS subheading 2003.10.00, which encompasses mushrooms prepared
or preserved otherwise than by vinegar or acetic acid, they are
correctly classifiable under subheading 2001.90.39 as vegetables,
prepared or preserved by vinegar or acetic acid and "therefore
. . . exempt from the deposit of antidumping duties." Plain-
tiffs' Motion to Stay, Exhibit E, para. 17.
The ITA's June 19, 2000 final scope ruling, which is
the object of plaintiffs' above-encaptioned action, states that
the agency has in
no sense . . . determined the scope of th[e antidump-
ing-duty] order to be determined solely by HTS head-
ings. . . . [T]he merchandise in question falls with-
in the scope of the antidumping duty order based on the
plain text of the order, without reliance on a specific
HTS heading. The scope of the order twice contains in-
tentionally broad text so as to include all preserved
mushrooms, with some very specific exceptions.
Id., Exhibit A, p. 9. But the ruling does proceed to explain:
The exclusion to the scope covers "'marinated,' 'acid-
ified' or 'pickled' mushrooms, which are prepared or
preserved by means of vinegar or acetic acid." Thus,
the main question raised by this scope inquiry is the
meaning of "prepared or preserved by means of vinegar
or acetic acid." Since . . . the plain text of the
scope of the order . . . [h]as the identical language
contained in HTS subheading 2001.90.39, and the Peti-
tion, which reflects the intent of the petitioners[,]
refers to the HTS subheading, the Customs rulings in-
terpreting this language and HTS subheading are a rea-
sonable and appropriate interpretation of that phrase
in the petition and thus the scope of the antidumping
duty order. When the Department considered the Petition
Court No. 00-07-00360 Page 6
Supplement, we adopted as part of the exclusionary
language the identical text contained in HTS subhead-
ing 2001.90.39, in accordance with our authority to
define an enforceable scope. The language of HTS sub-
heading 2001.90.39, "prepared or preserved by means of
vinegar or acetic acid," was interpreted by Customs in
1983 in Customs Ruling HRL 069121 and applied, consist-
ent with that interpretation, for fifteen years as of
the time the petitioners incorporated that language
into their scope exclusion request. Given the narrow
issue presented by Tak Fat with respect to this lan-
guage, we find it reasonable to interpret it consistent
with the interpretation it had been given for fifteen
years by Customs.
Customs Ruling HRL 069121, which established the 0.5
percent acetic acid standard for consideration as prod-
ucts "prepared or preserved by means of vinegar or
acetic acid," was promulgated in 1983 and since then,
there have been numerous other Customs rulings relying
on that precedent, samples of which are on the record
of this proceeding . . .. While these rulings, as well
as others that may relate to any future scope inquir-
ies[,] may not have been on the Department's record
prior to this scope proceeding, they have been a matter
of public record and have been available to any inter-
ested party since long before the filing of the Peti-
tion. Accordingly, we have adopted a position for this
scope ruling consistent with Customs practice relative
to the scope language at issue.
Id.
Nonetheless, the defendant, in opposing plaintiffs'
instant motion, avers that
the issue in this case is different from the issue
in Court No. 00-10-00490. The issue . . . is whether
Commerce properly determined that plaintiffs' mari-
nated and acidified mushrooms are within the class or
kind of merchandise described by the existing anti-
dumping duty order . . .. The issue in Court No. 00-
10-00490 is whether Customs properly determined that
Tak Yuen's mushrooms are classifiable under HTSUS sub-
heading 2003.10.00 and subject to deposits of estimated
antidumping duties and properly excluded Tak Yuen's
mushrooms from entry into the commerce of the United
States when Tak Yuen entered the mushrooms under HTSUS
subheading 2001.90.39.
Court No. 00-07-00360 Page 7
Defendant's Memorandum in Opposition to Plaintiffs' Motion to
Stay, pp. 7-8 (citations omitted). The defendant points out that
it is "well settled that a tariff classification by the Customs
Service does not govern an antidumping determination regarding
class or kind." Id. at 8.
. . . It is the responsibility of ITA to interpret
the term class or kind in such a way as to comply with
the mandates of the antidumping laws, not the classifi-
cation statutes. A product's tariff classification is
merely of peripheral interest to suggest the general
nature of a good.
Torrington Co. v. United States, 14 CIT 507, 512-13, 745 F.Supp.
718, 722 (1990), aff'd, 938 F.2d 1276 (Fed.Cir. 1991), citing
Mitsubishi Elec. Corp. v. United States, 12 CIT 1025, 1044, 700
F.Supp. 538, 553-54 (1988), aff'd, 898 F.2d 1577 (Fed.Cir. 1990);
Roquette Freres v. United States, 7 CIT 88, 95, 583 F.Supp. 599,
605 (1984); Diversified Prods. Corp. v. United States, 6 CIT 155,
159, 572 F.Supp. 883, 887 (1983); Royal Bus. Mach., Inc. v.
United States, 1 CIT 80, 87 and 507 F.Supp. 1007, 1014, n. 18
(1980), aff'd, 669 F.2d 692 (CCPA 1982). In other words, Com-
merce
has the authority not only to define the scope of an
antidumping duty investigation but also to clarify the
statement of its scope . . ..
[T]he ITA, not the Customs Service, is responsible for
clarifying, where necessary, the scope of dumping find-
ings and antidumping duty orders.
Diversified Prods. Corp. v. United States, 6 CIT at 159-60, 572
F.Supp. at 887.
Court No. 00-07-00360 Page 8
II
This being the rule, the plaintiffs do not make the
requisite "strong showing" that a stay of this action is now
necessary or appropriate. Ergo, their motions for a stay3 and
for oral argument thereon should be, and each hereby is, denied.
So ordered.
Dated: New York, New York
December 12, 2000
Judge
3
In conjunction with this motion, the plaintiffs have filed
a motion to amend the proposed scheduling of this action for fin-
al disposition, which will be granted as submitted.
Moreover, the court notes in passing that resolution of re-
lated actions can be coordinated so as to minimize any prejudice
or inefficient proceedings.