Exchange v. United States

• Decision Date: 11 April 2014
• Docket Number: Slip Op. 14–40.,Court No. 13–00148.
• Citation: 973 F.Supp.2d 1334
• Parties: The FLORIDA TOMATO EXCHANGE, Plaintiff, v. UNITED STATES, Defendant, and Caades Sinaloa, A.C., Consejo Agricola De Baja California, A.C., Asociacion Mexicana De Horticultura Protegida, A.C., Union Agricola Regional De Sonora Productores De Hortalizas Frutas y Legumbres, Confederacion Nacional De Productores De Hortalizas, Defendant–Intervenors.
• Court: U.S. Court of International Trade

973 F.Supp.2d 1334

The FLORIDA TOMATO EXCHANGE, Plaintiff,

v.UNITED STATES, Defendant,andCaades Sinaloa, A.C., Consejo Agricola De Baja California, A.C., Asociacion Mexicana De Horticultura Protegida, A.C., Union Agricola Regional De Sonora Productores De Hortalizas Frutas y Legumbres, Confederacion Nacional De Productores De Hortalizas, Defendant–Intervenors.

Slip Op. 14–40.

Court No. 13–00148.

United States Court of

International Trade.

April 11, 2014.

Terence P. Stewart, Geert De Prest, Patrick J. McDonough, and Nicholas J. Birch, Stewart and Stewart, of Washington, D.C., for plaintiff.

Mikki Cottet, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington D.C., for defendant. With her on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of counsel on the brief was Rebecca Cantu, Senior Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, United States Department of Commerce, of Washington, D.C.Thomas B. Wilner, Robert S. LaRussa, and Bryan Dayton, Shearman & Sterling LLP, of Washington, D.C., for defendant-intervenors.

EATON, Judge:

This matter is before the court on plaintiff The Florida Tomato Exchange's (“plaintiff” or the “FTE”) motion to strike certain exhibits and arguments from Defendant–Intervenors' Response to Plaintiff's Rule 56.2 Motion for Judgment on the Agency Record (ECF Dkt. No. 40). Pl.'s Mot. to Strike Portions of the Def.-Ints.' Br. 1 (ECF Dkt. No. 47) (“Pl.'s Mot. to Strike”); see Pl.'s Rule 56.2 Mot. for J. on the Agency R. (ECF Dkt. No. 30) (“Rule 56.2 Mot.”). Plaintiff claims that, because the exhibits were not presented to the Department of Commerce (“Commerce” or the “Department”) in the underlying administrative proceedings, they are not part of the administrative record, and as a consequence cannot be considered by the court. Pl.'s Mot. to Strike 1. Defendant-intervenors argue that the material plaintiff seeks to strike is needed in order for defendant-intervenors to make their judicial estoppel claim. Def.-Ints.' Resp. to Pl.'s Mot. to Strike 2–3 (ECF Dkt. No. 48). According to defendant-intervenors, plaintiff is making arguments before the court that are contrary to the positions it took in prior proceedings before Commerce and the ITC, and that the doctrine of judicial estoppel prohibits these arguments from being made. Def.-Ints.' Resp. to Pl.'s Mot. to Strike 1–3. Thus, because they insist that the material proves their judicial estoppel claim, defendant-intervenors oppose plaintiff's motion. For the reasons that follow, plaintiff's motion is denied.

BACKGROUND

On April 25, 1996, the Department initiated an antidumping investigation of imports of fresh tomatoes from Mexico. Fresh Tomatoes From Mexico, 61 Fed.Reg. 18,377, 18,377 (Dep't of Commerce Apr. 25, 1996) (initiation of antidumping duty investigation). On November 1, 1996, following a preliminary injury finding by the International Trade Commission (“ITC”), Commerce preliminarily determined that fresh tomatoes from Mexico were being, or were likely to be, sold in the United States at less than fair value. Fresh Tomatoes From Mexico, 61 Fed.Reg. 56,608, 56,608 (Dep't of Commerce Nov. 1, 1996) (notice of preliminary determination of sales at less than fair value and postponement of final determination).

That same day, pursuant to 19 U.S.C. § 1673c(c)(1) (1994), the Department concluded “that extraordinary circumstances [were] present,” and executed a suspension agreement with growers and/or exporters of fresh tomatoes from Mexico who “accounted for substantially all ... of the subject merchandise imported into the United States.” Fresh Tomatoes From Mexico, 61 Fed.Reg. 56,618, 56,618 (Dep't of Commerce Nov. 1, 1996) (suspension of antidumping investigation). The agreement set forth an established “reference price,” which was a minimum price at which the signatories could sell subject merchandise in the United States. Renewal agreements followed in 2002, 2008, and 2013, further suspending final determinations by the Department and the ITC. SeeFresh Tomatoes From Mexico, 67 Fed.Reg. 77,044 (Dep't of Commerce Dec. 16, 2002) (suspension of antidumping investigation); Fresh Tomatoes From Mexico, 73 Fed.Reg. 4,831 (Dep't of Commerce Jan. 28, 2008) (suspension of antidumping investigation); Fresh Tomatoes From Mexico, 78 Fed.Reg. 14,967 (Dep't of Commerce Mar. 8, 2013) (suspension of antidumping investigation), and accompanying 2013 Suspension Agreement (collectively, “2013 Suspension Agreement”).

With respect to the 2013 Suspension Agreement (the agreement now challenged by plaintiff pursuant to its Rule 56.2 Motion), the Department concluded “that the 2013 Suspension Agreement w[ould] eliminate completely the injurious effect of exports to the United States of the subject merchandise and prevent the suppression or undercutting of price levels of domestic fresh tomatoes by imports of that merchandise from Mexico.” 2013 Suspension Agreement, 78 Fed.Reg. at 14,968. Commerce “also determined that the 2013 Suspension Agreement [was] in the public interest and [that the agreement could] be monitored effectively, as required under” 19 U.S.C. § 1673c(d)(2) (2006). 2013 Suspension Agreement, 78 Fed.Reg. at 14,968.

On April 5, 2013, the FTE, “a trade association representing growers and first handlers of the domestic like product” in the United States, commenced this action pursuant to 28 U.S.C. § 1581(c) (2006), challenging the Department's determination to suspend the antidumping investigation on fresh tomatoes from Mexico. Summons ¶¶ 1, 2 (ECF Dkt. No. 1). On August 30, 2013, plaintiff submitted its motion for judgment on the agency record. Rule 56.2 Mot. The Department opposes plaintiff's Rule 56.2 Motion and asks that its determination to suspend the investigation and enter into the 2013 Suspension Agreement be sustained. Def.'s Mem. in Opp'n to Pl.'s Rule 56.2 Mot. for J. on the Agency R. 1–2 (ECF Dkt. No. 42). Defendant-intervenors, CAADES Sinaloa, A.C., Consejo Agrícola de Baja California, A.C., Asociación Mexicana de Horticultura Protegida, A.C., Unión Agrícola Regional de Sonora Productores de Hortalizas Frutas y Legumbres, and Confederación Nacional de Productores de Hortalizas (collectively, “defendant-intervenors”), which “are ‘association[s,] a majority of the members of which are producers, exporters, or importers of’ fresh tomatoes from Mexico,” join in opposition to plaintiff's Rule 56.2 Motion. Consent Mot. to Intervene as of Right as Def.-Ints. 1 (ECF Dkt. No. 15) (quoting 19 U.S.C. § 1677(9)(A) (2006)).

Following the filing of the parties' respective response briefs to plaintiff's Rule 56.2 Motion, the FTE filed a motion to strike portions of defendant-intervenors' brief pursuant to USCIT Rules 12(f) and 81(m). Rule 12(f) directs that a motion to strike be granted when a party's pleading contains “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” USCIT Rule 12(f) (2014). Rule 81(m) directs the court to disregard “[a] brief or memorandum [that contains] burdensome, irrelevant, immaterial, pejorative [or] scandalous matter.” USCIT Rule 81(m) (2014). Plaintiff seeks to exclude from the record Exhibits 2, 3, 4, 5, 8, 13, 14, and 16 of defendant-intervenors' brief and the other related portions of the brief that are based on information contained within these exhibits. The exhibits and arguments that plaintiff seeks to exclude from the record all pertain to defendant-intervenors' contention that plaintiff is judicially estopped from offering arguments in this Court that are contrary to arguments it offered before Commerce and the ITC during earlier proceedings.

DISCUSSION

I. Motion to Strike

As a general rule, motions to strike are “disfavored” by courts and considered “extraordinary” remedies. See, e.g., Diamond Sawblades Mfrs. Coal. v. United States, 31 CIT 1249, 1252, 2007 WL 2274038 (2007); United States v. UPS Customhouse Brokerage, Inc., 30 CIT 808, 820, 442 F.Supp.2d 1290, 1302 (2006); Elkem Metals Co. v. United States, 27 CIT 1758, 1760, 297 F.Supp.2d 1347, 1350 (2003); Hynix Semiconductor, Inc. v. United States, 27 CIT 1469, 1470, 2003 WL 22250346 (2003); Acciai Speciali Terni S.p.A. v. United States, 24 CIT 1211, 1217, 120 F.Supp.2d 1101, 1106 (2000); Jimlar Corp. v. United States, 10 CIT 671, 673, 647 F.Supp. 932, 934 (1986). Thus, such motions “should be granted only in cases where there has been a flagrant disregard of the rules of court.” Jimlar, 10 CIT at 673, 647 F.Supp. at 934 (citing Application of Harrington, 55 CCPA 1459, 392 F.2d 653, 655 (1968)). As a result, “courts will not grant motions to strike unless the brief demonstrates a lack of good faith, or that the court would be prejudiced or misled by the inclusion in the brief of the improper material.” Id. “[T]his Court has broad discretion in evaluating [whether to grant or deny] motions to strike.” Hynix Semiconductor, 27 CIT at 1470. However,

“[t]here is no occasion for a party to move to strike portions of an opponent's brief (unless they be scandalous or defamatory) merely because he thinks they contain material that is incorrect, inappropriate, or not a part of the record. The proper method of raising those issues is by so arguing, either in the brief or in a supplemental memorandum, but not by filing a motion to strike.”

Acciai Speciali Terni, 24 CIT at 1217, 120 F.Supp.2d at 1106 (quoting Dillon v. United States, 229 Ct.Cl. 631, 636 (Ct.Cl.1981)).

Generally speaking, this Court's authority for judicial review is confined to the administrative record. Kerr–McGee Chem. Corp. v. United States, 21 CIT 1179, 1183, 985 F.Supp. 1162, 1165 (1997) (citation omitted) (“For purposes of judicial review, the Court may consider only materials contained in the administrative record.”); Neuweg Fertigung GmbH v. United States, 16...