Changzhou Hawd Flooring Co. v. United States

986 F.Supp.2d 1372

CHANGZHOU HAWD FLOORING CO., LTD., et al., Plaintiffs,

v.UNITED STATES, Defendant.

Slip Op. 14–60. Court No. 12–00020.¹

United States Court of International Trade.

May 29, 2014.

Gregory S. Menegaz and J. Kevin Horgan, deKieffer & Horgan, PLLC, Washington, DC, for the Plaintiffs.

Kristin H. Mowry, Jeffrey S. Grimson, Jill A. Cramer, Sarah M. Wyss, Rebecca M. Janz, and Daniel R. Wilson, Mowry & Grimson, PLLC, of Washington, DC, for the Plaintiff–Intervenor.

Harold Deen Kaplan, Hogan Lovells U.S. LLP, of Washington, DC, for movants Armstrong Wood Products (Kunshan) Co., Ltd., Lumber Liquidators Services, LLC, and Home Legend, LLC. On the brief were Mark R. Ludwikowski and Kristen S. Smith, and Lana Nigro, Sandler, Travis & Rosenberg, PA, of Washington, DC.

Alexander V. Sverdlov, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for the Defendant. Appearing with him were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke, Assistant Director. Of counsel was Melissa Brewer, 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.

OPINION AND ORDER

POGUE, Chief Judge:

Armstrong Wood Products (Kunshan) Co., Lumber Liquidators Services, LLC, and Home Legend, LLC (collectively “Armstrong”),² move for “party litigant re-designation,” from Defendant–Intervenor in (the now severed and dismissed) Court Number 11–00452 to Plaintiff–Intervenor in (the now remaining) Court Number 12–00020. Armstrong's Mot. at 2; see also supra note 1. The court construes this motion as a motion to intervene pursuant to USCIT Rule 24 in Court No. 12–00020, out of time, as Plaintiff–Intervenor, and grants the motion, finding good cause for Armstrong's late filing in the context and circumstances present here.

BACKGROUND

I. Four Initial Actions Challenging Commerce's Final Determination of Sales at Less Than Fair Value of Multilayered Wood Flooring from the People's Republic of China

This litigation arises from the Coalition for American Hardwood Parity's (“CAHP”) October 21, 2010 petition to the Department of Commerce (“Commerce” or the “Department”) alleging that imports of multilayered wood flooring from the People's Republic of China (“PRC” or “China”) were being dumped in the United States. In response, Commerce initiated an antidumping duty investigation for the period of April 1, 2010 through September 30, 2010. Multilayered Wood Flooring from the People's Republic of China, 75 Fed.Reg. 70,714 (Dep't Commerce Nov. 18, 2010) (initiation of antidumping duty investigation). Armstrong was not individually investigated, but qualified for a separate rate. Multilayered Wood Flooring from the People's Republic of China, 76 Fed.Reg. 30,656, 30,661 n. 33 (Dep't Commerce May 26, 2011) (preliminary determination of sales at less than fair value) (granting Armstrong separate rate status).

The final determination in the investigation ³ was the subject of four separate challenges before this Court, pursuant to § 516A(a)(2) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2) (2006) and 28 U.S.C. § 1581(c) (2006)⁴:

(1) Coalition for American Hardwood Parity v. United States, Court Number 11–00452, brought by the Petitioner, see Compl., Ct. No. 11–00452, ECF No. 7, at ¶ 4;

(2) Baroque Timber Industries (Zhongshan) Co., Ltd. v. United States, Court Number 12–00007, brought by individually-investigated mandatory respondents (collectively the “Samling Group”), see Compl., Ct. No. 12–00007, ECF No. 9, at ¶ 3;

(3) Zhejiang Layo Wood Indus. Co. v. United States, Court Number 12–00013, brought by another individually-investigated mandatory respondent (“Layo Wood”), see Compl., Ct. No. 12–00013, ECF No. 9, at ¶ 1; and

(4) Changzhou Hawd Flooring Co., Ltd. v. United States, Court Number 12–00020, brought by the non-individually investigated respondents who qualified for a separate rate (“Separate Rate Respondents”), see Compl., Ct. No. 12–00020, ECF No. 9, at ¶ 1.

Armstrong was not among the plaintiffs in the separate rate respondents' challenge and did not, at any time, formally seek to intervene as Plaintiff–Intervenor in that case. Instead, Armstrong sought and received permission to intervene as Defendant–Intervenor in Court Number 11–00452, defending the results of the investigation against the Petitioner's challenge. Consent Mot. to Intervene [as Def.-Intervenor], Ct. No. 11–00452, ECF No. 28; Order Jan. 17, 2012, Ct. No. 11–00452, ECF No. 41 (granting Armstrong's motion to intervene as Defendant–Intervenor).⁵Armstrong did not move to intervene, on the Plaintiff's or Defendant's side, in any of the other three actions.

II. Consolidation Under Consolidated Court Number 12–00007

The court, after consultation with the parties, consolidated Court Numbers 11–00452, 12–00007, 12–00013, and 12–00020 into Consolidated Court No. 12–00007; the respondent plaintiffs were ordered to file a joint opening brief. Order May 31, 2012, Ct. No. 12–00007, ECF No. 37. When the respondent plaintiffs filed their Joint Motion for Judgment on the Agency Record Pursuant to Rule 56.2 in accordance with this order, Armstrong was not listed as a plaintiff respondent or as any party on that brief. See Resp'ts' Mot. for J. on the Agency R. Pursuant to Rule 56.2, Ct. No. 12–00007, ECF No. 63.

Thereafter, the court granted Defendant's motion to dismiss Petitioner's challenge (Court Number 11–00452) for lack of subject matter jurisdiction. Baroque, ––– CIT at ––––, 865 F.Supp.2d at 1309. Although the court certified some legal issues in that case for interlocutory appeal,⁶ the Petitioner never filed an appeal. Its challenge was accordingly severed from the consolidated action, and final judgment was entered in Court No. 11–00452, dismissing the case, on November 27, 2012. Am. Order Nov. 27, 2012, Consol. Ct. No. 12–00007, ECF No. 75; Judgment, Ct. No. 11–00452, ECF No. 68.

Although Armstrong was never formally made a party to any challenge to the antidumping duty investigation, other than being granted Defendant–Intervenor status in the (subsequently dismissed) Petitioner's challenge (Court No. 11–00452), and although Armstrong was not listed as a party on the respondents' joint opening brief, Armstrong appeared on the respondents' reply brief in the remaining consolidated action, for the first time joining the arguments made by the respondent plaintiffs in challenging (as opposed to defending, as it had done in Court No. 11–00452) the results of the investigation. See Resp't Pls.' Reply, Consol. Ct. No. 12–00007, ECF No. 87, at 1, 40. Thereafter, Armstrong has consistently appeared on briefing challenging Commerce's determinations in the investigation at issue.⁷

III. Court–Ordered Remand and Commerce's Subsequent Redetermination

The court remanded the results of the antidumping duty investigation. Baroque Timber Indus. (Zhongshan) Co., Ltd. v. United States, ––– CIT ––––, 925 F.Supp.2d 1332 (2013). Commerce filed its redetermination on November 14, 2013. See Final Results of Redetermination Pursuant to Court Order, Consol. Ct. No. 12–00007, ECF No. 132 (“ Redetermination ”). Commerce's Redetermination explicitly addresses Armstrong's challenge, during the remand proceeding, to Commerce's calculation of the separate rate. Id. at 38. ⁸

Following filing of the Redetermination, Armstrong continued to pursue this challenge in its briefing. See Armstrong's Comments on Remand Results, Consol. Ct. No. 12–00007, ECF No. 134. The Government grouped Armstrong together with the other separate-rate parties and acknowledged Armstrong's comments as “plaintiffs who submitted comments.” Def.'s Resp. to Comments Upon Remand Redetermination, Consol. Ct. No. 12–00007, ECF No. 141 at 1 n. 1. Defendant–Intervenor CAHP also acknowledged Armstrong's comments in its reply comments. Def.-Intervenor's Reply Comments Regarding Dep't Commerce Final Results of Redetermination Pursuant to Ct. Remand, Dec. 13, 2013, Consol. Ct. No. 12–00007, ECF No. 140, at 1 n. 1.

IV. Second Remand and Severance

The court affirmed in part and remanded in part Commerce's Redetermination. Baroque IV, ––– CIT at ––––, 971 F.Supp.2d at 1346. The court sustained most of Commerce's findings, including the assignment of de minimis rates to the mandatory respondents. Id. at 1338 n. 15. However, the separate rate calculation ⁹ was remanded for further consideration, as Commerce's redetermination was unsupported by a reasonable reading of the record. Id. at 1342–46.

Plaintiffs Samling Group and Layo Wood then moved to sever their appeals (Court Numbers 12–00007 and 12–00013) from the sole remaining action under Consol. Court No. 12–00007 (the Separate Rate Respondents' appeal, Court No. 12–00020), and to have final judgment entered. Pls.' Samling Grp. & Layo Wood Joint Mot. to Sever and for Entry J., Consol. Ct. No. 12–00007, ECF No. 159. The court granted this motion, severing both Court Numbers 12–00007 and 12–00013 and entering final judgment therein. See supra note 1.

Before severance and final judgment was granted in Court Numbers 12–00007 and 12–00013, however, on April 14, 2014, Armstrong moved to amend the court's most recent opinion so as to include Armstrong in the list of separate rate plaintiffs in Baroque IV and to be re-designated as Plaintiff–Intervenor in Consol. Court Number 12–00007. Armstrong's Mot., Consol. Ct. No. 12–00007, ECF No. 160. This motion is now at issue before the court.

DISCUSSION

I. Consolidation

This Court may consolidate actions that present common questions of law or fact. USCIT R. 42(a).¹⁰ However, “consolidation ‘does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another.’ ” Dorbest Ltd. v. United States, 32...