Ad Hoc Shrimp Trade Action v. U.S.

• Decision Date: 13 June 2008
• Docket Number: Slip Op. 08-67. Court No. 07-00378.
• Parties: AD HOC SHRIMP TRADE ACTION COMMITTEE, Plaintiff, v. UNITED STATES, Defendant, and Thai I-Mei Frozen Foods Co., Ltd., et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

562 F.Supp.2d 1383

AD HOC SHRIMP TRADE ACTION COMMITTEE, Plaintiff, v. UNITED STATES, Defendant, and Thai I-Mei Frozen Foods Co., Ltd., et al., Defendant-Intervenors.

Slip Op. 08-67. Court No. 07-00378.

United States Court of International Trade.

June 13, 2008.

COPYRIGHT MATERIAL OMITTED

Dewey & Leboeuf LLP, Washington, DC (Bradford L. Ward) and (David A. Bentley) Counsel for Plaintiff Ad Hoc Shrimp Trade Action Committee.

Gregory G. Katsas, Acting Assistant Attorney General; Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice;. Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice; (Stephen C. Tosini) Acting Attorney Commercial Litigation Branch Counsel for Defendant, United States.

Steptoe & Johnson LLP, Washington, DC (Eric C. Emerson) and (Michael T. Gershberg) Counsel for Defendant-Intervenor Thai I-Mei Frozen Foods Co., Ltd.

Thompson Hine L.L.P. (Gregory Husisian) Counsel for Defendant-Intervenor Surapon Nichirei Foods Co., Ltd. and Nichirei U.S.A., LLC.

OPINION

WALLACH, Judge.

I INTRODUCTION

Defendant-Intervenor Thai I-Mei Frozen Foods Co. Ltd. ("Thai-I-Mei") has moved for a modification of a preliminary injunction previously entered by this court on November 26, 2007 ("2007 Injunction"). Defendant-Intervenor asks this court to remove its entries of certain frozen warmwater shrimp shipped between August 4, 2004 and January 31, 2006 from the scope of the 2007 Injunction. The court has the power to grant the requested relief pursuant to 19 U.S.C. § 1516a(c)(2) and USCIT R. 65(a). See also SKF Inc. v. United States, 28 CIT 170, 182, 316 F.Supp.2d 1322, 1334 (2004). Defendant-Intervenor's Partial Consent Motion to Modify the Preliminary Injunction ("Defendant-Intervenor's Motion to Modify") is DENIED, for failure to meet the burden of establishing a change in circumstances which is necessary for the court to modify a preliminary injunction. Aimcor, Ala. Silicon, Inc. v. United States, 23 CIT 932, 939, 83 F.Supp.2d 1293, 1298-99 (1999) (citing Favia v. Ind. Univ. of Pa., 7 F.3d 332, 340 (3d Cir.1993)).

II BACKGROUND

Plaintiff Ad Hoc Shrimp Trade Action Committee, requested, on November 21, 2007, an order from this court enjoining, during the pendency of this action, the liquidation of entries into the United States of certain frozen warmwater shrimp from Thailand that: (1) are covered by Certain Frozen Warmwater Shrimp from Thailand: Final Results and Final Partial Rescission of Antidumping Duty Administrative Review, 72 Fed.Reg. 52,065 (Sept. 12, 2007) ("Final Results"); (2) were entered, or were withdrawn from warehouse for consumption on or after August 4, 2004, through and including January 31, 2006; and (3) were produced and/or exported by any of the following exporters: Good Luck Product Co., Ltd., Thai I-Mei Frozen Foods Co., Ltd. (Defendant-Intervenor), Fortune Frozen Foods (Thailand) Co., Ltd., and Surapon Nichirei Foods Co., Ltd. Plaintiffs Consent Motion for Preliminary Injunction to Enjoin Liquidation of Certain Entries ("Plaintiffs Consent Motion for Preliminary Injunction"). In its Consent Motion, Plaintiff presented to the court sufficient evidence of all of the factors necessary for the court to grant a preliminary injunction as established by Zenith Radio Corp. v. United States, 710 F.2d 806, 809 (Fed.Cir.1983).¹ Plaintiffs Consent Motion for Preliminary Injunction at 2-6. Upon review of the arguments set forth by Plaintiff, the court issued a preliminary injunction on November 26, 2007. Order Granting Plaintiffs Consent Motion for Preliminary Injunction at 1 (November 26, 2007). On January 4, 2008, the court permitted Defendant-Intervenor to intervene as a matter of right in this case. Order Granting Defendant-Intervenor's Motion to Intervene Admittance at 1 (January, 4, 2008). On January 18, 2008, Defendant-Intervenor filed a partial consent motion seeking to modify the 2007 Injunction. ("Defendant-Intervenor's Motion to Modify"). Defendant-Intervenor brought to the court's attention the fact that Plaintiff, in its Consent Motion for the 2007 Preliminary Injunction, had not made the court aware of an existing order enjoining the liquidation of Defendant-Intervenor's entries of certain frozen warmwater shrimp made between August 4, 2004 and January 31, 2006, issued by this court in 2005 in the case Thai I-Mei Frozen Foods Co., Ltd. v. United States, CIT Court No. 05-00197 (the "2005 Injunction"). Id at 2-3. Defendant-Intervenor argues that the court granted Plaintiffs Consent Motion for Preliminary Injunction, in part, as a result of Plaintiffs failure to raise the 2005 Injunction. Id. at 3. Defendant-Intervenor takes the position that but for this failure, Plaintiffs omission to the court regarding the 2005 injunction, Plaintiff would have not have been able to make the required showing under each of the four Zenith factors and thus was not entitled to injunctive relief with respect to Defendant-Intervenor's entries. Id. at 4. Defendant-Intervenor argues that Plaintiff has not established that sufficient irreparable harm that would occur without the 2007 injunction, and as a result, Plaintiff did not satisfactorily prove its need for a preliminary injunction with respect to its entries. Id. Accordingly, Defendant-Intervenor asks the court to modify the 2007 injunction by limiting its scope so that no longer applies to Defendant-Intervenor's entries.

III DISCUSSION

A

The Court Correctly Issued the 2007 Injunction in Accordance with the Zenith Factors.

Injunctive relief is an "extraordinary remedy" to be granted sparingly. Weinberger v. Romero-Barceló, 456 U.S. 305, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91,,(1982); FMC Corp. v. United States, 3 F.3d 424 427 (Fed.Cir.1993). However, there are circumstances that do merit injunctive relief before trial. To be granted injunctive relief, the movant bears the burden of establishing that (1) absent the requested relief, it will suffer immediate irreparable harm; (2) there exists in its favor a likelihood of success on the merits; (3) the public interest would be better served by the requested relief; and (4) the balance of the hardships on all parties tips in its favor. Zenith Radio Corp., 710 F.2d at 809. Plaintiff successfully proved all four of the required factors to the court's satisfaction. Order Granting Plaintiffs Consent Motion for Preliminary Injunction at 3-5. Upon these showings, the court granted Plaintiffs Consent Motion. Id.

Defendant-Intervenor claims that the 2007 Injunction should be modified to exclude Defendant-Intervenor's entries given Plaintiffs failure to raise the 2005 Injunction; according to Defendant-Intervenor, this failure invalidates Plaintiffs position with respect to "irreparable harm," the first of the four Zenith factors. Defendant-Intervenor's Motion to Modify at 4; Defendant-Intervenor's Reply in Support of Partial Consent Motion to Modify Preliminary Injunction ("Defendant-Intervenor's Reply") at 2. Furthermore, Defendant-Intervenor argues that Plaintiff must again prove the immediacy of irreparable harm in order to keep the 2007 Injunction intact. Id. at 3-5.

The Plaintiff, having met its burden of persuasion (the four Zenith factors) initially in order to receive the 2007 Injunction does not have to convince the court again of its necessity. SKF USA Inc. v. United States, 28 CIT at 182. ("The court, however is not persuaded that the Plaintiffs, having met their burden of persuasion initially in order to receive the preliminary injunction, must again convince the court of its necessity in order to appeal the court's judgment. Rather it remains incumbent upon the Defendant to persuade the court that the injunction is unnecessary and should be reconsidered or dissolved."). In the instant case, the court will not allow Defendant-Intervenor, which is attempting to modify the 2007 Injunction to effectively shift the burden to the Plaintiff to reprove the factors for preliminary injunction that have previously been proven to the court's satisfaction. Rather, the court needs only to examine whether the Defendant-Intervenor has raised circumstances which effectively justify a rehearing of its prior determination.²

B The Court Has the Authority to Maintain the 2007 Injunction Even if the Threat of "Irreparable Harm" Is Not as Imminent as First Presented

The court has the power to grant an injunction even in the absence of a strong "irreparable harm" showing. The court is entitled to employ a "sliding scale" in regards to the valuation of the four Zenith factors, Chilean Nitrate Corp. v. United States, 11 CIT 538, 539 (1987), and consequently need not assign to each factor equal weight, FMC Corp., 3 F.3d at 427. None of the Zenith factors, "taken individually must necessarily be dispositive in the court's analysis." See Id. at 427; the weakness of the showing regarding one factor may be overborne by the strength of others. Id. Thus, while the court is within its rightful discretion to issue a preliminary injunction even if there is a less immediate finding of irreparable harm, Plaintiff has demonstrated the immediacy of harm in a manner sufficient to this court.³ See Plaintiffs Response to Thai I-Mei's Motion to Modify Preliminary Injunction ("Plaintiffs Response") at 7-9.

C

Defendant-Intervenor Has Not Met Its Burden of Proving "Changed Circumstances" to Warrant a Modification of the 2007 Injunction.

The court has "inherent power and discretion to modify injunctions for changed circumstances." Aimcor, 23 CIT at 938 (citing Sys. Fed'n No. 91 v. Wright, 364 U.S. 642, 647, (81 S.Ct. 368) 5 L.Ed.2d 349 (1961)). However, the party challenging the preliminary injunction or seeking to modify it must prove that the injunction "is unnecessary and should be reconsidered or dissolved." SKF, 316 F.Supp.2d at 1334. Accordingly, in order to succeed in obtaining a modification of the 2007 Inju...