Giorgio Foods, Inc. v. United States, Slip Op. 11–139.Court No. 03–00286.

Citation804 F.Supp.2d 1315,33 ITRD 2259
Decision Date17 November 2011
Docket NumberSlip Op. 11–139.Court No. 03–00286.
PartiesGIORGIO FOODS, INC., Plaintiff, v. UNITED STATES, Defendant,andL.K. Bowman Company, Monterey Mushrooms, Inc., and Mushroom Canning Company, Defendant–Intervenors.
CourtU.S. Court of International Trade

33 ITRD 2259
804 F.Supp.2d 1315

GIORGIO FOODS, INC., Plaintiff,
v.
UNITED STATES, Defendant,andL.K.
Bowman Company, Monterey Mushrooms, Inc., and Mushroom Canning Company, Defendant–Intervenors.

Slip Op. 11–139.Court No. 03–00286.

United States Court of International Trade.

Nov. 17, 2011.


[804 F.Supp.2d 1316]

Arnold & Porter, LLP (Michael T. Shor and Sarah Brackney Arni), Washington, DC, for Plaintiff Giorgio Foods, Inc.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, (Courtney S. McNamara) and Andrew G. Jones, Office of Assistant Chief Counsel, United States Customs and Border Protection, Of Counsel, and James M. Lyons, General Counsel, Neal J. Reynolds, Assistant General Counsel, U.S. International Trade Commission (Patrick V. Gallagher, Jr.), for Defendant United States.

Akin, Gump, Strauss, Hauer & Feld, LLP (Valerie A. Slater and

[804 F.Supp.2d 1317]

W. Randolph Teslik), Washington, DC, for Defendant–Intervenors L.K. Bowman Company and The Mushroom Company.Kelley Drye & Warren, LLP (Michael J. Coursey and R. Alan Luberda), Washington, DC, for Defendant–Intervenor Monterey Mushrooms, Inc.

OPINION
WALLACH, Judge:
I
INTRODUCTION

Plaintiff Giorgio Foods, Inc. (“Giorgio” or “Plaintiff”) filed a Second Motion for Leave to Amend the Complaint (“Plaintiff's Motion”) seeking to amend its Complaint in five ways. First, in light of the Federal Circuit's decision in SKF USA, Inc. v. U.S. Customs and Border Prot., 556 F.3d 1337 (Fed.Cir.2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 3273, 176 L.Ed.2d 1182 (2010), Giorgio wishes to drop its First Amendment facial challenge to the petition support eligibility requirement of the Continued Dumping and Subsidy Offset Act, 19 U.S.C. § 1675(c) (“CDSOA”) while maintaining its challenge to the requirement as applied to Giorgio. Memorandum of Law in Support of Plaintiff's Second Motion for Leave to Amend the Complaint (“Plaintiff's Memo”) at 2–3. Second, Giorgio wishes to drop its Equal Protection facial challenge to the petition support eligibility requirement of the CDSOA while maintaining its challenge to the requirement as applied to Giorgio. Id. Third, Giorgio requests to add a claim “for statutory violations, claiming that the [U.S. International Trade Commission] and [U.S. Customs and Border Protection] acted inconsistently with the statute in ruling that Giorgio had not satisfied the statute's petition support requirement, and in otherwise denying CDSOA distributions to Giorgio.” Id. Fourth, Giorgio also requests to add a claim, “in the alternative, for violation of the Due Process Clause.” Id. at 3. Fifth, Giorgio seeks to clarify its requested relief “to state that it is specifically seeking money damages from the United States.” Id. at 4. The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(i).

For the reasons stated below, Giorgio's Motion is GRANTED in part and DENIED in part. As to its first and second requests, Plaintiff's Motion is GRANTED; as to its third, fourth, and fifth requests, Plaintiff's Motion is DENIED.

II
BACKGROUND

In order to qualify for distributions under the CDSOA,1 an entity must qualify as an “affected domestic producer.” 19 U.S.C. § 1675c(a) (2000) (repealed 2006); see also SKF USA, 556 F.3d 1337; Cathedral Candle Co. v. U.S. Int'l Trade Comm'n, 400 F.3d 1352 (Fed.Cir.2005). An “affected domestic producer” is defined as either a “petitioner” or an “interested party in support of the petition with respect to which an antidumping duty order ... has been entered,” the latter indicating its support “by letter or through questionnaire response.” 19 U.S.C. § 1675c(b)(1)(A), (d)(1) (2000) (repealed 2006).

[804 F.Supp.2d 1318]

Prior to the enactment of the CDSOA, from 1998–99, the U.S. International Trade Commission (“ITC”) conducted antidumping duty injury investigations concerning certain preserved mushrooms from Chile, China, India, and Indonesia. See Plaintiff's Complaint, Doc. No. 4 at 2, 4.2 In response to the ITC's questionnaires in these investigations, Plaintiff “indicated that it (1) took no position with respect to the petition filed against preserved mushrooms from Chile, China, and Indonesia, and (2) opposed the petition with respect to India.” Plaintiff's Proposed First Amended Complaint, Doc. No. 59–2 at 8.3

In May 2003, Giorgio commenced this action to challenge its exclusion from the list of affected domestic producers compiled by the ITC and from the resulting distributions by U.S. Customs and Border Protection (“Customs”) of funds under the CDSOA. Id. at 5–6. Giorgio then sought to amend its original complaint, abandoning its statutory claim that the ITC violated the CDSOA and adding an Equal Protection Clause constitutional claim as well as a claim for unjust enrichment. Giorgio Foods, Inc.'s Motion for Leave to Amend Complaint, Doc. No. 59 at 1.4 The court granted Giorgio's motion to amend its original complaint in part. Giorgio Foods, Inc. v. United States, 31 CIT 1261, 515 F.Supp.2d 1313 (2007).5 Giorgio then successfully sought to include in the administrative record documents from the preliminary and final antidumping injury investigations regarding Certain Preserved Mushrooms from Chile, China, India, and Indonesia, Invs. 731–TA–776–779. Plaintiff's Motion to Complete the ITC Record, Doc. No. 95; Giorgio Foods, Inc. v. United States, 755 F.Supp.2d 1342 (CIT 2011).

Plaintiff now “seeks to amend and supplement its complaint to take into consideration (1) the Federal Circuit's decision in [ SKF ], (2) the documents Giorgio obtained from the [ITC] after the Court granted Giorgio's Motion to Complete The Agency Record, and (3) new facts that have occurred since the acceptance by this Court of the First Amended Complaint in 2007.” Plaintiff's Motion at 1 (internal citations omitted).

III
STANDARD OF REVIEW

USCIT R. 15(a), which parallels Rule 15(a) of the Federal Rules of Civil Procedure, governs amendments to a party's

[804 F.Supp.2d 1319]

complaint. When a party seeks to amend its pleading before a trial has been set, amendments may be granted only by leave of the court or by written consent of the adverse party. USCIT R. 15(a)(2).6 The granting of a motion for leave to amend the pleadings is within the sound discretion of the court. Intrepid v. Pollock, 907 F.2d 1125, 1129 (Fed.Cir.1990). Absent any dilatory motive, undue cause for delay, repeated failures to cure deficiencies by amendments, futility of amendment, or undue prejudice to the opposing party, leave to amend should be liberally given. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). “Futility of the proposed amendment is an adequate reason to deny leave to amend.” Cultor Corp. v. A.E. Staley Mfg. Co., 224 F.3d 1328 (Fed.Cir.2000). In exercising its discretion, the court “will consider a variety of factors including, but not limited to, (1) the timeliness of the motion to amend the pleadings; (2) the potential prejudice to the opposing party; (3) whether additional discovery will be necessary; (4) the procedural posture of the litigation; (5) whether the omitted counterclaim is compulsory; (6) the impact on the court's docket; and (7) the public interest.” Tomoegawa (U.S.A.), Inc. v. United States, 15 CIT 182, 186, 763 F.Supp. 614, 618 (1991) (citing Budd Co. v. Travelers Indem. Co., 109 F.R.D. 561, 563 (E.D.Mich.1986)).

IV
DISCUSSION

The crux of Defendant Customs' opposition to Giorgio's first through fourth requests to amend is Custom's reading of the Federal Circuit's holding in SKF. See Defendant United States Customs and Border Protection's Response to Plaintiff's Second Motion to Amend the Complaint (“Customs' Response”). 7 According to Customs, the “Federal Circuit essentially held that a producer must both (1) indicate its support of the petition (by checking the support box on the questionnaire) and (2)

[804 F.Supp.2d 1320]

demonstrate that its support of the petition is not merely abstract (through active participation).” Id. at 6 (citing SKF, 556 F.3d at 1353 n. 26) (emphasis in original); see id. at 10 (citing SKF, 556 F.3d at 1352–54). Customs argues that because Giorgio “concedes that it opposed the antidumping petition with respect to India and took no position with respect to the antidumping petitions regarding Chile, China and Indonesia,” id. at 10, Giorgio's proposed amendments for its first four claims should all be rejected as futile, see id.8

Giorgio's first and second requests to amend its complaint, abandoning its constitutional facial challenges to the CDSOA, are granted. Infra Part IV.A. All of Giorgio's remaining requests are denied. Infra Parts IV.B–D.

A
Giorgio's First And Second Requests, Abandoning Its Constitutional Facial Challenges To The CDSOA, Are Granted

With regards to Giorgio's first and second requests, the court has previously encountered Defendant's arguments in a similar context; 9 in response the court found:

[N]o prejudice to defendant or defendant-intervenors ... would result from allowing the amendment of the two earlier complaints, and neither defendant nor defendant-intervenors point to any. The opposition to plaintiff's motions to amend is based solely on the ground of futility. However, in the circumstances of this consolidated case, in which the legal theory supporting the new claim and the new factual allegations already are before the court and are addressed in defendant-intervenors' motion to dismiss and for judgment on the pleadings, and in which amendment would not prejudice opposing parties, the court is not required to consider futility in ruling on plaintiff's motions to amend.Std. Furniture Mfg. Co., Inc. v. United States, Slip Op. 11–032, 2011 WL 1312487, at *3, 2011 Ct. Intl. Trade LEXIS 30, at *10–11 (CIT March 23, 2011) (granting Plaintiff's motions to amend) (citing Foman, 371 U.S. at 182, 83 S.Ct. 227 (“Of...

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4 cases
  • Giorgio Foods, Inc. v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • April 24, 2015
    ...Giorgio's motion to add its statutory claim as futile because it failed to state a claim in light of SKF. Giorgio Foods, Inc. v. United States, 804 F.Supp.2d 1315, 1321–22 (C.I.T.2011). And on March 6, 2013, the Trade Court granted motions to dismiss all of Giorgio's claims. Giorgio Foods, ......
  • Giorgio Foods, Inc. v. United States
    • United States
    • U.S. Court of International Trade
    • March 6, 2013
    ...2011, this Court granted plaintiff's request to abandon the facial constitutional claims, Giorgio Foods, Inc. v. United States, 35 CIT ––––, ––––, 804 F.Supp.2d 1315, 1320–21 (2011) (“Giorgio II ”), but denied plaintiff's requests to add a statutory claim, due process claims, and a claim fo......
  • Giorgio Foods, Inc. v. United States, Court No. 03-00286
    • United States
    • U.S. Court of International Trade
    • March 6, 2013
    ...2011, this Court granted plaintiff's request to abandon the facial constitutional claims, Giorgio Foods, Inc. v. United States, 35 CIT _____, _____, 804 F. Supp. 2d 1315, 1320-21 (2011) ("Giorgio II"), but denied plaintiff's requests to add a statutory claim, due process claims, and a claim......
  • Giorgio Foods, Inc. v. United States, Slip Op. 13-14
    • United States
    • U.S. Court of International Trade
    • January 30, 2013
    ...Foods Inc. v. United States, 35 CIT _, _, 755 F.Supp.2d 1342, 1344-45 (2011) ("Giorgio II"), Giorgio Foods Inc. v. United States, 35 CIT _, _, 804 F.Supp.2d 1315, 1317-18 (2011) ("Giorgio III"). 3. Def. U.S. Int'l Trade Comm'n's Mot. to Dismiss Pursuant to R. 12(b)(5) (Oct. 16, 2012), ECF N......

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