Changzhou Hawd Flooring, Co. v. United States

Slip Op. 14 - 81
UNITED STATES COURT OF INTERNATIONAL TRADE
CHANGZHOU HAWD FLOORING CO.,
LTD., et al.,
Plaintiffs,
Before: Donald C. Pogue,
Senior Judge
v.
Court No. 12-00020
UNITED STATES,
Defendant.
OPINION AND MEMORANDUM
[motion to intervene denied]
Dated: July 14, 2014
Gregory S. Menegaz, J. Kevin Horgan, and John J.
Kenkel, deKieffer & Horgan, PLLC, of Washington, DC, for
Plaintiffs.
Kristin H. Mowry, Jeffrey S. Grimson, Jill A. Cramer,
Sarah M. Wyss, and Daniel R. Wilson, Mowry & Grimson, PLLC, of
Washington, DC, for Plaintiff-Intervenor Fine Furniture
(Shanghai) Ltd.
H. Deen Kaplan, Hogan Lovells US LLP, of Washington,
DC, for Plaintiff-Intervenor Armstrong Wood Products (Kunshan)
Co., Ltd.
Mark R. Ludwikowski, Arthur K. Purcell, Michelle L.
Mejia, and Kristen Smith, Sandler, Travis & Rosenberg, PA, of
Washington, DC, for Plaintiff-Intervenors Lumber Liquidators
Services, LLC, and Home Legend, LLC.
Ronald M. Wisla and Lizabeth R. Levinson, Kutak Rock,
LLP, of Washington, D.C., for Movants Metropolitan Hardwood
Floors, Inc., Baishan Huafeng Wooden Product Co., Ltd., Dalian
Dajen Wood Co., Ltd., Dalian Kemian Wood Industry Co., Ltd.,
Dalian Penghong Floor Products Co., Ltd., Dasso Industrial Group
Co., Ltd., Dunhua City Hongyuan Wood Industry Co., Ltd., Dunhua
City Wanrong Wood Industry Co., Ltd., Fusong Jinlong Wooden
Court No. 12-00020 Page 2
Group Co., Ltd., Guangzhou Panyu Southern Star Co., Ltd., HaiLin
LinJing Wooden Products, Ltd., Hangzhou Hanje Tec Co., Ltd.,
Hunchun Forest Wolf Industry Co., Ltd., Huzhou Chenghang Wood
Co., Ltd., Huzhou Fulinmen Imp. & Exp. Co., Ltd., Huzhou Fuma
Wood Bus. Co., Ltd., Jianfeng Wood (Suzhou) Co., Ltd., Jilin
Forest Industry Jinqiao Flooring Group Co., Ltd., Kemian Wood
Industry (Kunshan) Co., Ltd., MuDanJiang Bosen Wood Industry
Co., Ltd., Nakahiro Jyou Sei Furniture (Dalian) Co., Ltd.,
Shanghai Eswell Timber Co., Ltd., Shanghai Lizhong Wood Products
Co., Ltd., Shanghai Shenlin Corporation., Shenyang Haobainian
Wooden Co., Ltd., Shenzhenshi Huanwei Woods Co., Ltd., Suzhou
Dongda Wood Co., Ltd., Xuzhou Shenghe Wood Co., Ltd., Zhejiang
Dadongwu GreenHome Wood Co., Ltd., Zhejiang Longsen Lumbering
Co., Ltd., and Zhejiang Shiyou Timber Co., Ltd.
Alexander V. Sverdlov, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Department of
Justice, of Washington, DC, for Defendant. Appearing with him
were Stuart F. Delery, Assistant Attorney General, Jeanne E.
Davidson, Director, and Claudia Burke, Assistant Director. Of
counsel was Shana Hofstetter, Attorney, International Office of
the Chief Counsel for Trade Enforcement and Compliance, U.S.
Department of Commerce, of Washington, DC.
Jeffrey S. Levin, Levin Trade Law, P.C., of Bethesda,
MD, for the Defendant-Intervenor.
Pogue, Senior Judge: The motion before the court comes
from numerous exporters of multilayered wood flooring
manufactured in the People’s Republic of China (“Movants”), 1 who
1 Metropolitan Hardwood Floors, Inc., Baishan Huafeng Wooden
Product Co., Ltd., Dalian Dajen Wood Co., Ltd., Dalian Kemian
Wood Industry Co., Ltd., Dalian Penghong Floor Products Co.,
Ltd., Dasso Industrial Group Co., Ltd., Dunhua City Hongyuan
Wood Industry Co., Ltd., Dunhua City Wanrong Wood Industry Co.,
Ltd., Fusong Jinlong Wooden Group Co., Ltd., Guangzhou Panyu
Southern Star Co., Ltd., HaiLin LinJing Wooden Products, Ltd.,
Hangzhou Hanje Tec Co., Ltd., Hunchun Forest Wolf Industry Co.,
Ltd., Huzhou Chenghang Wood Co., Ltd., Huzhou Fulinmen Imp. &
Exp. Co., Ltd., Huzhou Fuma Wood Bus. Co., Ltd., Jianfeng Wood
(Suzhou) Co., Ltd., Jilin Forest Industry Jinqiao Flooring Group
Co., Ltd., Kemian Wood Industry (Kunshan) Co., Ltd., MuDanJiang
(footnote continued)
Court No. 12-00020 Page 3
seek Plaintiff-Intervenor status in Changzhou Hawd Flooring, Co.
v. United States, Court Number 12-00020, pursuant to USCIT Rules
7(b) and 24(a)(3). Mot. to Intervene at 1. Defendant, the
United States, and Defendant-Intervenor, the Coalition for
American Hardwood Parity (“CAHP”), oppose the motion. Def.’s
Resp. to the Mot. for Intervention, ECF No. 97; Def.-
Intervenor’s Oppo’n to Mot. to Intervene, ECF No. 94. Because
Movants have not demonstrated good cause for the untimely filing
of their motion to intervene, their motion is DENIED.
BACKGROUND
On February 8, 2012, Plaintiffs filed their complaint
in this action, challenging Commerce’s determination in
Multilayered Wood Flooring from the People’s Republic of China,
76 Fed. Reg. 64,318 (Dep’t Commerce Oct. 18, 2011) (final
determination of sales at less than fair value) (“Final
Determination”). Compl., ECF No. 9. 2 On June 13, 2014, more than
Bosen Wood Industry Co., Ltd., Nakahiro Jyou Sei Furniture
(Dalian) Co., Ltd., Shanghai Eswell Timber Co., Ltd., Shanghai
Lizhong Wood Products Co., Ltd., Shanghai Shenlin Corporation.,
Shenyang Haobainian Wooden Co., Ltd., Shenzhenshi Huanwei Woods
Co., Ltd., Suzhou Dongda Wood Co., Ltd., Xuzhou Shenghe Wood
Co., Ltd., Zhejiang Dadongwu GreenHome Wood Co., Ltd., Zhejiang
Longsen Lumbering Co., Ltd., and Zhejiang Shiyou Timber Co.,
Ltd. Mot. to Intervene as Intervenor Pls. Pursuant to R.
24(a)(3), ECF No. 78 (“Mot. to Intervene”) at Attachment 1.
2 This action was subsequently consolidated with Court Numbers
11-00452, 12-00007, and 12-00013, under Consolidated Court
Number 12-00007. Order May 31, 2012, Consol. Ct. No. 12-00007,
ECF No. 37. Court Number 11-00452 was ultimately severed and
(footnote continued)
Court No. 12-00020 Page 4
two years later, 3 Movants filed their motion to intervene
pursuant to USCIT Rule 24(a)(3). Mot. to Intervene at 1.
DISCUSSION
Under USCIT Rule 24(a)(3), movants may intervene as a
matter of right 4 “no latter than 30 days after the date of
dismissed. Am. Order Nov. 27, 2012, Consol. Ct. No. 12-00007,
ECF No. 75; Judgment, Ct. No. 11-00452, ECF No. 68; see Baroque
Timber Indus. (Zhongshan) Co., Ltd. v. United States, __ CIT __,
853 F. Supp. 2d 1290 (2012); Baroque Timber Indus. (Zhongshan)
Co., Ltd. v. United States, __ CIT __, 865 F. Supp. 2d 1300(2012).
3 In this time, the court has issued two decisions, Baroque
Timber Indus. (Zhongshan) Co., Ltd. v. United States, __ CIT __,
925 F. Supp. 2d 1332 (2013) and Baroque Timber Indus.
(Zhongshan) Co., Ltd. v. United States, __ CIT __,
971 F. Supp. 2d 1333 (2014), resulting in two redeterminations
from Commerce, Final Results of Redetermination Pursuant to
Court Order, Consol. Ct. No. 12-00007, ECF No. 132, and Final
Results of Redetermination Pursuant to Court Order, ECF No. 52.
Following the first remand determination, Court Numbers 12-00007
and 12-00013 were severed and final judgment entered. Order
Granting Mot. to Sever, Consol. Ct. No. 12-00007, ECF No. 162;
Judgment, Ct. No. 12-00007, ECF No. 163; Judgment, Ct. No. 12-
00013, ECF No. 32. These have since been appealed by Defendant-
Intervenor CAHP. Appeal of Judgment, Ct. No. 12-00007, ECF No.
166; Appeal of Judgment, Ct. No. 12-00013, ECF No. 33.
4 Where, as here, the court has jurisdiction under 28 U.S.C. §
1581(c) (2012) (all further citations to the U.S. Code are to
the 2012 edition), intervention may be sought only as a matter
of right. See 28 U.S.C. § 2631(j)(1)(B); USCIT Rule 24(a)(3);
Ontario Forest Indus. Assoc. v. United States, 30 CIT 1117, 1130
n. 12, 444 F. Supp. 2d 1309, 1322 n. 12 (2006); Dofasco Inc. v.
United States, 31 CIT 1592, 1594-95, 519 F. Supp. 2d 1284, 1286-
87 (2007); U.S. Magnesium LLC v. United States, 31 CIT 792, 793
(2007). To intervene as a matter of right, Movants must be
interested parties that were party to the underlying
administrative proceedings. 28 U.S.C. § 2631(j)(1)(B). Movants,
all separate rate respondents, are interested parties. See 28
U.S.C. § 2631(k)(1) (providing that “‘interested party’ has the
(footnote continued)
Court No. 12-00020 Page 5
service of the complaint,” or at such later time if good cause
is shown. USCIT R. 24(a)(3). It is uncontested that Movants
have filed late. Mot. to Intervene at 2. They must, therefore,
show good cause for their delay.
Good cause is defined as “mistake, inadvertence,
surprise or excusable neglect.” USCIT R. 24(a)(3)(i). 5 It is “at
bottom,” an equitable standard incorporating “all relevant
circumstances surrounding the party’s omission.” Pioneer Inv.
Servs. Co. v. Brunswick Associates Ltd. P'ship, 507 U.S. 380,
395 (1993) (discussing the excusable neglect analysis). Relevant
circumstances include “the danger of prejudice to the [non-
movants], length of the delay and its potential impact on
judicial proceedings, the reason for the delay, including
whether it was within the reasonable control of the movant, and
whether the movant acted in good faith.” Id. 6
meaning given such term in [19 U.S.C. § 1677(9)]); 19 U.S.C.
§ 1677(9)(A) (defining “interested party” to include “a foreign
manufacturer, producer, or exporter . . . of subject
merchandise”). They were also all party to the underlying
investigation. See Final Determination at 64,323-24 (assigning
separate rate to movants). They may, therefore, timely
intervene as a matter of right.
5 Good cause may also be found if the delay is the result of
“circumstances in which by due diligence a motion to intervene
under this subsection could not have been made within the 30-day
period.” USCIT R. 24(a)(3)(ii).
6 See Changzhou Hawd Flooring Co. v. United States, Slip Op. 14-
60, 2014 WL 2210737, at *3-4 (CIT May 29, 2014), for further
discussion of use of this standard.
Court No. 12-00020 Page 6
Here, the likely prejudice to the non-movants is
minimal, as Movants “do not seek to raise any new legal or
factual issue not already brought before the court,” 7 and some
prejudice to the Movants is probable, as, without intervention,
they will be denied “the benefit of the separate rate” that
results from this litigation. Mot. to Intervene at 3. However,
the length of the delay — over two years with two CIT opinions
and two redeterminations by Commerce issued in that time 8 — is
substantial. The Movants allege that they have intervened now
because “for the first time, the very important issue of what
the new separate rate should be, and to whom it should apply,
has arisen.” Mot. to Intervene at 2. The reason they provide
for their delay is that they could not, in good faith, have
“reasonably predicted” that the litigation would take this
direction. Id. But Plaintiffs initiated this action to
represent the interests of the separate rate respondents in the
course of this litigation. Compl. at 1. The separate rate has
been at issue, whether directly or indirectly, throughout.
7 See Home Products Int'l, Inc. v. United States, 31 CIT 1706,
1708, 521 F. Supp. 2d 1382, 1385 (2007) (finding little
prejudice to non-moving parties given the restricted, supporting
role an intervenor takes); Silver Reed Am., Inc. v. United
States, 9 CIT 1, 7, 600 F. Supp. 852, 857 (1985) (finding no
prejudice to non-moving parties where moving party “does not
seek to raise any new issues or to otherwise interfere with the
progress of the litigation.”).
8 See supra note 3
Court No. 12-00020 Page 7
Movants had notice of the substantive issues raised because they
were full participants in the administrative proceedings below.
As Movants state, the “impetus behind [their] Motion”
is the sudden “viable possibility” for “the separate rate
companies to achieve a zero rate.” Mot. to Intervene at 2. This
suggests not so much good cause, as strategic timing, “a
conscious decision not to intervene timely.” See Siam Food
Products Pub. Co., Ltd. v. United States, 22 CIT 826, 830, 24 F.
Supp. 2d 276, 280 (1998). Allowing such opportunistic
intervention would “render the actual time limit [of USCIT Rule
24(a)(3)] superfluous.” Id., 22 CIT at 830, 24 F. Supp. 2d at
281. 9 Accordingly, Movants have not established good cause
sufficient to excuse their delay. Cf. Geum Poong Corp. v. United
States, 26 CIT 908, 909, 217 F. Supp. 2d 1342, 1343-44 (2002)
(finding that a party cannot intervene two years late without
good cause “because the litigation is now leaning its way”).
9 Movants would liken their motion to intervene to that of
Armstrong Wood Products (Kunshan) Co., Lumber Liquidators
Services, LLC, and Home Legend, LLC (collectively “Armstrong”).
Mot. to Intervene at 3; Defendants’ Motion to Re-Designated as
Intervenor Plaintiffs, Consol. Ct. No. 12-00007, ECF No. 160.
However, Movants do not share in Armstrong’s unique
circumstance. Armstrong had fully participated as a Defendant-
Intervenor and had been treated by the non-moving parties as if
already a Plaintiff-Intervenor. Changzhou Hawd Flooring, 2014 WL
2210737, at *4. Movants here did not so participate and have not
been so treated.
Court No. 12-00020 Page 8
CONCLUSION
Because Movants have failed to show good cause for
their delay in filing, their motion to intervene as Plaintiff-
Intervenors is DENIED.
IT IS SO ORDERED.
/s/ Donald C. Pogue ____
Donald C. Pogue, Senior Judge
Dated: July 14, 2014
New York, NY