79 F.Supp.3d 1331 (CIT. 2015), 12-00349, LDA Incorporado v. United States
|Citation:||79 F.Supp.3d 1331|
|Opinion Judge:||Claire R. Kelly, Judge.|
|Party Name:||LDA INCORPORADO, Plaintiff, v. UNITED STATES, Defendant|
|Attorney:||No. 12-00349 Ronald M. Wisla, Lizbeth R. Levinson, Kutak Rock LLP, of Washington, DC, for Plaintiff. Beverly A. Farrell, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, for Defendant. With her on the brief were Benjamin C. Mizer, Principa...|
|Judge Panel:||Before: Claire R. Kelly, Judge.|
|Case Date:||June 19, 2015|
|Court:||Court of International Trade|
Upon submission of Joint Stipulation of Undisputed Facts and Proposed Conclusions of Law, in lieu of trial, judgment is granted in favor of Plaintiff.
Before the court is the parties' Joint Stipulation of Undisputed Facts and Proposed Conclusions of Law, which was submitted in lieu of trial. See Joint Stipulation Undisputed Facts Proposed Conclusions of Law, May 8, 2015, ECF No. 49 (separately " JSUF," " Pl.'s PCL." and " Def.'s PCL" ).1 Familiarity with the case is presumed, however, the court provides a brief recitation of the procedural history of the case following the court's earlier denial of Defendant United States' (" Defendant" or " United States" ) motion to dismiss for lack of subject-matter jurisdiction.
On May 13, 2014, this court denied Defendant's motion to dismiss for lack of subject-matter jurisdiction. See LDA Incorporado v. United States, 38 C.I.T. __, __, 978 F.Supp.2d 1359 (2014). Thereafter, Defendant submitted its answer to Plaintiff LDA Incorporado's (" Plaintiff" or " LDA" ) complaint, and the court entered a scheduling order governing discovery and other trial related matters. See Answer, June 26, 2014, ECF No. 34; Scheduling Order, July 2, 2014, ECF No. 36.
On March 13, 2015, LDA, with Defendant's consent, moved " to submit a joint stipulation of agreed upon facts in lieu of trial . . . ." Pl.'s Consent Mot. Permit Parties Submit Joint Stipulation Agreed Upon Facts in Lieu of Trial, Mar. 13, 2015, ECF No. 39. After conferring with the parties, the court granted LDA's consent motion and ordered the parties to submit a " joint stipulation of undisputed facts and proposed conclusions of law . . . ." Order, Mar. 16, 2015, ECF No. 41. The parties submitted their Joint Stipulation of Undisputed Facts and Proposed Conclusions of Law on May 8, 2015, and the court deemed the matter submitted for resolution. As the parties have stipulated to the facts and only continue to disagree about whether jurisdiction exists, a legal issue already decided by the court, the court finds that based on the undisputed facts, LDA's protest was erroneously denied and will enter judgment accordingly.
The following facts are undisputed.2
1. LDA " is a Puerto Rican corporation located in Guaynabo, Puerto Rico. Plaintiff is an importer and reseller of electrical infrastructure products, including galvanized electrical rigid steel conduit, for use in the construction industries. Plaintiff represents foreign manufacturers in the local Puerto Rico market." JSUF ¶ 1 (citing Compl. ¶ 8, Apr. 16, 2013, ECF No. 5; Pl.'s Resp. Def.'s Mot. Dismiss 2, Dec. 24, 2013, ECF No. 17 (" Pl.'s Resp." )).
2. LDA's " customers are electrical material distributors that operate in both Puerto Rico and the United States." Id. ¶ 2 (citing Compl. ¶ 8; Pl.'s Resp. 2, Ex. 1 at Attach. 8). 3. " LDA does not undertake any finishing or further processing operations prior to the resale of its imports." Id. ¶ 3 (citing Compl. ¶ 8; Pl.'s Resp. 2). 4. " On July 22, 2008, the U.S. Department of Commerce (" Commerce" ) issued antidumping and countervailing duty orders covering circular welded carbon quality steel pipe from the People's Republic of China." Id. ¶ 4 (citing Circular Welded Carbon Quality Steel Pipe from the People's Republic of China, 73 Fed.Reg. 42,545 (Dep't Commerce July 22, 2008) (notice of amended final affirmative countervailing duty determination and notice of countervailing duty order) (" CVD Order" ); Circular Welded Carbon Quality Steel Pipe from the People's Republic of China, 73 Fed.Reg. 42,547 (Dep't Commerce July 22, 2008) (notice of antidumping duty order) (" ADD Order" ) (collectively " the Orders" )). 5. " The express language of the A.D. and CVD orders specifically excluded 'finished electrical conduit' from their scope." Id. ¶ 5. The language of the Orders provide that [t]he scope of this order does not include: (a) pipe suitable for use in boilers, superheaters, heat exchangers, condensers, refining furnaces and feedwater heaters. whether or not cold drawn; (b) mechanical tubing, whether or not cold-drawn; (c) finished electrical conduit; (d) finished scaffolding; (e) tube and pipe hollows for redrawing; (f) oil country tubular goods produced to API specifications; and (g) line pipe produced to only API specifications. CVD Order at 42,546 (cited in JSUF ¶ 5).3 6. Both before and after Commerce issued the Orders, " Plaintiff purchased rigid steel conduit manufactured by Guangdong Walsall Steel Pipe Industrial Co., Ltd. (" Walsall" ), a Chinese manufacturer." JSUF ¶ 6 (citing Pl.'s Resp. 3). Walsall galvanizes the product " through a hot dipped process." Id. (citing Compl. ¶ 10; Pl.'s Resp. Ex. 4 at 2). 7. " On July 22, 2010, Plaintiff imported into the United States at the Port of San Juan[,]Puerto Rico a single entry (Entry No. 438-0698613-9) of galvanized rigid steel conduit from China." Id. ¶ 7 (citing Pl.'s Resp. Ex. 1 at Attach. 1 at 1). Plaintiff entered the merchandise " as a Type I entry, not subject to the A.D. and CVD orders." Id. (citing Pl.'s Resp. Ex. 1 at Attach. 1 at 1). 8. Upon import, Plaintiff's " galvanized electrical conduit was both internally and externally coated with a non-electrically insulating material (zinc) and was suitable for electrical use in accordance with Underwriters Laboratories Inc. (" UL" ) standard UL-6 for 'electrical rigid ferrous metal conduit' and American National Standard Institute (" ANSI" ) standard C80.1-2005 for 'electrical rigid steel conduit.'" Id. ¶ 8 (citing Pl.'s Resp. Ex. 1 at Attachs. 3, 6). 9. " The commercial invoice associated with Entry No. 438-0698613-9 describes the merchandise as '9134 pcs of rigid conduit galvanized rigid conduit with stantdards (sic) compliance of ANSI C80-1 and Underwriters Laboratories UL-6 with a standard length of 10 feet, coupling included.'" Id. ¶ 9 (citing Commercial Invoice in Court file.). " Other entry documents, including the packing list, mill report, and bill of lading, all reference the UL-6 or ANSI C.80-1 standards." Id. (citing Court file). 10. The U.S. Customs and Border Protection (" CBP" or " Customs" ) conducted laboratory inspections of the imported merchandise after its entry and " [t]he CBP laboratory issued seven laboratory reports (one for each of the diameter sizes contained in the shipment). Each of the laboratory reports described the sample as 'galvanized conduit' and concluded that 'the pipe is composed of zinc-galvanized low carbon non-alloy steel'. Each of the laboratory reports also contained the following conclusion: 'In our opinion, the sample is not internally coated with a non-conducting liner.'" Id. ¶ 10 (citing Pl.'s Resp. Ex. 1 at Attach. 1 at 5-18). 11. " On January 10, 2011, CBP issued a Notice of Action notifying Plaintiff that CBP was assessing antidumping and countervailing duties on the subject merchandise." Id. ¶ 11 (citing Pl.'s Resp. Ex. 1 at Attach. 1 at 3; Court file). " Plaintiff was required to file a revised entry form reflecting the assessment of antidumping and countervailing duty deposits." Id. (citing Pl.'s Resp. Ex. 1 at Attach. 1 at 2; Court file). " The Notice of Action did not state the reasons for the rate advance, but during telephone conferences and a face-to-face meeting on January 26, 2011, CBP advised LDA that the laboratory inspections indicated that the subject merchandise was not internally galvanized and was thus unfinished conduit subject to the antidumping and countervailing duty orders." Id. (citing Pl.'s Resp. 4-5). 12. " By letter dated January 28, 2011, Plaintiff provided CBP with additional information to establish that the subject merchandise was both externally and internally coated with zinc." Id. ¶ 12 (citing Pl.'s Resp. Ex. 4). " The documents included proof of Walsall compliance with ANSI C.80 [sic] and UL-6 standards; resubmission to CBP of the purchase/entry documents including the commercial invoice, packing list bill of lading, mill certificate and certificate of origin, all stating compliance with ANSI and UL standards; and the pro forma invoice (purchase order) and letter of credit showing merchandise in compliance with ANSA [sic] and UL standards." Id. (citing Pl.'s Resp. Ex. 1 at Attach. 5 at 1-3, 7-8, Attach. 6 at 1-2, Ex. 3 at 2-6). " Further, Plaintiff explained to CBP that Walsall galvanized the purchased conduit using the 'hot dipped galvanized' process, which internally and externally galvanizes the product." Id. (citing Pl.'s Resp. Ex. 4 at 2). 13. On...
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