United States v. Univar USA, Inc., Slip Op. 16–119

195 F.Supp.3d 1312

UNITED STATES, Plaintiff,

v.UNIVAR USA, INC., Defendant.

Slip Op. 16–119

Court No. 15–00215

United States Court of International Trade.

December 22, 2016

Stephen C. Tosini , Senior Trial Counsel, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for plaintiff. With him on the brief were Benjamin C. Mizer , Principal Deputy Assistant Attorney General, Jeanne E. Davidson , Director, and Patricia M. McCarthy , Assistant Director.

Lucius B. Lau , White & Case LLP, of Washington, DC, argued for defendant. With him on the brief were Gregory J. Spak and Dean A. Barclay , of Washington, DC, and Fernando L. Aenlle–Rocha , of Los Angeles, CA.

MEMORANDUM AND ORDER

Barnett, Judge:

The case is before the court on cross-motions for partial summary judgment. Univar's Mot. for Partial Summ. J. ("Def.'s PMSJ"), ECF No. 18; Confidential Pl.'s Opp'n to Univar's Mot. for Partial Summ. J. and Cross–Mot. for Partial Summ. J. ("Pl.'s Opp'n and XMSJ"), ECF No. 30. In this case, Plaintiff, United States, seeks to recover unpaid antidumping duties and a monetary penalty pursuant to 19 U.S.C. § 1592,¹ stemming from 36 entries of saccharin,² allegedly transshipped from China through Taiwan, which Defendant, Univar USA, Inc. ("Defendant" or "Univar"),³ entered into the commerce of the United States between 2007 and 2012. Compl ¶ 1, ECF No. 2. Defendant seeks partial summary judgment in its favor with respect to the 23 entries that occurred prior to March 2010, while Plaintiff seeks partial summary judgment in its favor with regard to the 13 entries that occurred during or after March 2010. See generally Def.'s PMSJ; Pl.'s Opp'n and XMSJ. For the reasons discussed below, the court denies both motions for partial summary judgment.

BACKGROUND

Between July 9, 2007, and April 3, 2012, Univar made 36 entries of saccharin into the United States at various ports around the country. Compl. ¶ 7; Answer ¶ 7, ECF No. 8.⁴ Prior to 2003, Univar imported saccharin from the People's Republic of China ("PRC"). Compl. ¶ 8; Answer ¶ 8. Following investigations by both the Department of Commerce and the International Trade Commission, on July 2, 2003, the Department of Commerce issued an antidumping duty order on imports of saccharin from the PRC. AD Order, 68 Fed. Reg. 40,906. That order imposed cash deposits of estimated antidumping duties at the rate of 329.94 percent on imports of saccharin from the PRC. Id. at 40,907. Thereafter, Univar sought other sources of saccharin and, as of 2004, was importing saccharin from Taiwan. Compl. ¶¶ 8, 13; Answer ¶¶ 8, 13. For each of the 36 entries at issue, Univar declared the country of origin of its saccharin imports to be Taiwan. Am. Penalty Notice at 5.

CBP, through U.S. Immigration and Customs Enforcement, Homeland Security Investigations, began investigating Univar's imports of saccharin from Taiwan in 2009. Univar's Rule 56.3 Statement in Supp. of its Mot. for Partial Summ. J. ("Def.'s SOF") ¶¶ 5, 7, ECF No. 18–3; Confidential Pl.'s Rule 56.3 Statement in Supp. of its Opp'n to Univar's Mot. for Partial Summ. J. and Cross–Mot. for Partial Summ. J. ("Pl.'s SOF") ¶¶ 5, 7, ECF No. 30–1; see also Compl. ¶ 20; Answer ¶ 20. In July 2011, Kinetic Industries, Inc. ("Kinetic") brought a qui tam action pursuant to the False Claims Act, 31 U.S.C. § 3729 et seq. , alleging that Univar was misstating the country of origin of its imports of saccharin. Def.'s SOF ¶ 8; Pl.'s SOF ¶ 8. In 2013, the government declined to intervene in that case and, in 2014, Kinetic terminated the action. Def.'s SOF ¶¶ 19–20; Pl.'s SOF ¶¶ 19–20. CBP continued its own investigation into Univar's imports of saccharin. Among other things, as a result of their investigation, CBP determined⁵ that:

• Lung Huang,⁶ Univar's supplier in Taiwan, was not licensed to manufacture sodium saccharin in Taiwan. Am. Penalty Notice at 5.

• High Trans Corp. ("HTC") was the only licensed manufacturer of saccharin in Taiwan. Confidential Aff. of Special Agent Wally Tsui in Supp. of Pl.'s Opp'n. to Univar's Mot. for Partial Summ. J. ("Tsui Aff."), ECF No. 30–11, Ex. 1 ("Department of Homeland Security ("DHS") ROI No. 18") at 34, ECF No. 30–12.

• HTC, a company producing saccharin in Kaohsiung City, Taiwan, made a limited number of sales to Lung Huang in 2005, for export to the United States. DHS ROI No. 18 at 63; see also Def.'s SOF ¶ 64; Pl.'s SOF ¶ 64.

• As of August 29, 2010, HTC's only U.S. customer for saccharin was Rit–Chem. DHS ROI No. 18 at 63.

• The Lung Huang factory address provided by William Huang was a residential building. DHS ROI No. 18 at 73; Am. Penalty Notice at 5.

CBP concluded that there was a sufficient correlation between imports into Taiwan from China and exports from Taiwan to Univar to indicate that Univar's imports were simply being transshipped from China, through Taiwan, to the United States. Am. Penalty Notice at 5.

CBP issued a pre-penalty notice on July 21, 2014, followed by a penalty notice on October 1, 2014, and a revised penalty notice on February 10, 2015 (collectively, "penalty notices"). Pre–Penalty Notice; Penalty Notice; Am. Penalty Notice. Univar filed a petition for relief on October 31, 2014 and an amended petition on March 23, 2015 and CBP issued a final decision responding to both petitions on June 15, 2015. Def.'s PMSJ, Ex. 30 ("CBP Decision Letter"), ECF No. 18–34.

Plaintiff, United States, filed a Summons and Complaint in this action on August 6, 2015. Summons, ECF No. 1; Compl. Parties have filed cross-motions for partial summary judgment and the motions are fully briefed. Def.'s PMSJ; Pl.'s Opp'n and XMSJ. Both parties have also filed U.S. Court of International Trade ("USCIT") Rule 56(d) declarations asking the court to defer or deny the other party's partial motion for summary judgment because relevant discovery is ongoing. See Pl.'s Suppl. Br., Decl. of Stephen C. Tosini ("Pl.'s 56(d) Decl."), ECF No. 75–1; Univar USA Inc.'s Reply in Supp. of its Mot. for Partial Summ. J. ("Def.'s Reply"), ECF No. 36., Decl. of Lucius B. Lau in Supp. of Univar USA Inc.'s Rule 56(d) Request ("Def.'s 56(d) Decl."), ECF No. 36–6. After the conclusion of briefing and with leave from the court, Plaintiff filed a supplemental brief, to which Defendant provided a response. Pl.'s Suppl. Br., ECF No. 75; Univar USA Inc.'s Resp. to Pl.'s Suppl. Br. ("Def.'s Resp. to Pl.'s Suppl. Br."), ECF No. 76. The court heard oral argument on October 12, 2016. Docket Entry, ECF No. 77.

After oral argument, Defendant filed two separate motions for leave to file supplemental briefs and both motions are fully briefed. Univar USA Inc.'s Mot. for Leave to File Suppl. Br. ("Def.'s First Req."), ECF No. 79; Pl.'s Opp'n to Def.'s Mot. for Leave to File Suppl. Br. ("Pl.'s Opp'n to Def.'s First Req."), ECF No. 80; Confidential Univar USA Inc.'s Second Mot. for Leave to File a Suppl. Br. ("Def.'s Second Req."), ECF No. 82; Pl.'s Opp'n to Def.'s Second Mot. for Leave to File Suppl. Br., ECF No. 86.

JURISDICTION AND STANDARD OF REVIEW

This case is brought by the United States against Univar to recover unpaid antidumping duties and a monetary penalty owing from allegedly transshipped saccharin from China through Taiwan pursuant to 19 U.S.C. § 1592. As such, the court possesses jurisdiction to hear this action pursuant to 28 U.S.C. § 1582.

The Court of International Trade reviews all issues in actions brought for the recovery of a monetary penalty pursuant to section 1592de novo and on the basis of the record made before the court. 19 U.S.C. § 1592(e)(1) ; 28 U.S.C. § 2640(a) ; see also United States v. ITT Indus., Inc. , 28 CIT 1028, 1035, 343 F.Supp.2d 1322, 1329 (2004), aff'd , 168 Fed.Appx. 942 (Fed. Cir. 2006).

Summary judgment is appropriate upon motion "after adequate time for discovery" has elapsed and "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; USCIT Rule 56(c). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. See Gill v. District of Columbia , 751 F.Supp.2d 104, 107 (D.D.C. 2010) (citing Anderson , 477 U.S. at 248, 106 S.Ct. 2505, Celotex , 477 U.S. at 322, 106 S.Ct. 2548 ). The burden of establishing the absence of a genuine issue of material fact lies with the moving party. See Celotex Corp. , 477 U.S. at 323, 106 S.Ct. 2548. This burden may be discharged by showing that the nonmovant "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," or by pointing to "an absence of evidence to support the nonmoving party's case." Id. at 322, 325, 106 S.Ct. 2548 ; see also Exigent Tech. v. Atrana Solutions, Inc. , 442 F.3d 1301, 1307–1308 (Fed. Cir. 2006) (discussing Celotex Corp. ).

The court must view the evidence in the light most favorable to the nonmovant and may not weigh the evidence, assess the credibility of witnesses, or resolve issues of fact. See Anderson , 477 U.S. at 249, 255, 106 S.Ct. 2505 ; Netscape Comm.'s Corp. v. Konrad , 295 F.3d 1315, 1319 (Fed. Cir. 2002) ("When ruling on a motion for summary judgment, all of the nonmovant's evidence is to be credited and all justifiable inferences are to be drawn in the nonmovant's favor.") (citations omitted). In a case such as this, when discovery is ongoing, courts must also evaluate whether "adequate time for discovery" has elapsed so that the nonmovant is not ...