Trade Updates for Week of April 10, 2019

United States Court of International Trade

Generalized Claim Dismissed by Court

Before the Court in Husteel Co., Ltd. et. al.  v. United States et. al., Slip Op. 19-42, Court No. 18-00169 (April 5, 2019) was the defendant’s motion for a partial dismissal of the case. The case involved consolidated claims filed by Husteel and SeAH. Defendant seeks dismissal of paragraph ten of SeAH’s complaint under USCIT Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Paragraph ten of SeAH’s complaint stated “Finally, Plaintiff believes that Commerce’s determination may have contained other errors of law and fact that will become more apparent after a full review of the administrative record.” Id. at 3. For the following reasons the Court granted the defendant’s motion to dismiss.

USCIT Rule 8(a)(2) “requires that a claim for relief contain a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. at 4. To survive a motion to dismiss, a claim in a complaint must contain sufficient factual material to “state a claim to relief that is plausible on its face.” Id. at 5.  The Court said “paragraph ten of SeAH’s complaint states no specific errors of law or fact. SeAH simply claims there may be other errors of law and fact that will become more apparent after a full review of the administrative record.” Id. The Court dismissed SeAH’s argument that it did not have access to the record at the time of filing its complaint because it has subsequently been given access to the record index. “The vague and open-ended nature of paragraph ten of SeAH’s complaint denies the other parties fair notice of the scope of SeAH’s claims.” Id. at 5. As such, the claim was dismissed.

Plaintiff’s Claims Dismissed for Lack of Injury and Failure to State a Claim

Before the Court in Perry Chem. Corp. v. United States, Slip Op. 19-43, Court No. 15-00168 (April 5, 2019) was defendant’s motion for a partial dismissal of the case. Plaintiff brought the action to seek a writ of mandamus compelling the Commerce to issue modified liquidation instructions to CBP directing reliquidation without regard to antidumping duties of all entries of polyvinyl alcohol (“PVA”) from Taiwan produced and exported by Chang Chun Petrochemical Co. Ltd. Defendant moved to dismiss, pursuant to USCIT Rules 12(b)(1) and 12(b)(6) by arguing Perry sustained no injury and failed to state a claim.  For the following reasons the partial motion to dismiss was granted.

“To establish standing, a plaintiff must satisfy three elements. First, it must have suffered an injury in fact, that is, an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical. Second, a causal connection must exist between the injury and the conduct complained of. Third, the plaintiff must show a likelihood that the injury can be redressed by a favorable court decision.” Id at 11-12. The Court said in regards to the imports from March 2013 - December 2013, plaintiff was not the importer of record and lacked standing, plaintiff could not “maintain a claim for which it suffered no particularized injury nor faced imminent threat of such injury.” Id. at 12.  Perry failed to state a claim for which relief should be granted with respect to the entries from the second administrative review. The Court said Commerce lawfully instructed CBP to liquidate the entries and that plaintiff should have participated in the underlying antidumping investigation with Commerce in order to delay liquidation. As such, the claims regarding entries from the second review, and entries where Perry was not the importer of record were dismissed.