Gpx International Tire Corp. v. U.S., 08-146.
| Decision Date | 30 December 2008 |
| Docket Number | No. 08-00287.,No. 08-00285.,08-146.,No. 08-00286.,08-00285.,08-00286.,08-00287. |
| Parties | GPX INTERNATIONAL TIRE CORPORATION and Hebei Starbright Tire Co., Ltd., Plaintiffs, v. UNITED STATES, Defendant, and Bridgestone Americas Holding, Inc., Bridgestone Firestone North American Tire, LLC, Titan Tire Corporation, and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC, Defendant-Intervenors. |
| Court | U.S. Court of International Trade |
Winston & Strawn, LLP (Daniel L. Porter, James P. Durling, and Matthew P. McCullough), Washington, DC, Hinckley Allen & Snyder LLP (Eric F. Eisenberg), Boston, MA, Orrick, Herrington & Sutcliffe LLP (John A. Jurata, Jr.), Washington, DC, for plaintiffs.
Gregory G. Katsas, Assistant Attorney General; Jeanne E. Davidson, Director, Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (John J. Todor and Loren M. Preheim); Irene H. Chen and Matthew D. Walden, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of counsel; James M. Lyons, General Counsel, Andrea C. Casson, Assistant General Counsel, U.S. International Trade Commission (Rhonda M. Hughes and Peter L. Sultan) for defendant.
King & Spalding, LLP (Joseph W. Dorn, Christopher T. Cloutier, Daniel L. Schneiderman, J. Michael Taylor, and Kevin M. Dinan); Stewart and Stewart (Wesley K. Caine, Elizabeth A. Argenti, Elizabeth J. Drake, Eric P. Salonen, Geert M. De Prest, Terence P. Stewart, and William A. Fennell), for defendant-intervenors.
Plaintiffs GPX International Tire Corporation ("GPX") and Hebei Starbright Tire Co., Ltd. ("Starbright") (collectively, "plaintiffs") move for reconsideration or a rehearing of the court's decision in GPX International Tire Corp. v. United States, 587 F.Supp.2d 1278 (CIT 2008), denying plaintiffs' motion for a temporary restraining order and preliminary injunction. GPX, a domestic importer of certain off-the-road ("OTR") tires, and Starbright, a foreign producer and exporter of certain OTR tires, alleged that collection of full antidumping duty ("AD") and countervailing duty ("CVD") deposits would cause irreparable harm and sought to post some security until further litigation or an administrative review altered the situation. In denying plaintiffs' motion, the court found that plaintiffs had not demonstrated a likelihood of success on the merits in achieving a negative injury determination or a smaller AD and CVD rate so as to prevent the alleged irreparable harm.1
Plaintiffs now seek reconsideration pursuant to USCIT R. 59,2 alleging that because the court specifically found that GPX would suffer irreparable harm and found a likelihood of success on the merits for at least some individual issues in the CVD and AD determinations, injunctive relief was warranted. Alternatively, plaintiffs seek a rehearing to submit evidence concerning the effect of the Department of Commerce's ("Commerce") alleged error on the AD margin. Defendants Commerce and the International Trade Commission ("ITC") and defendant-intervenors Bridgestone Americas Holding, Inc., Bridgestone Firestone North American Tire, LLC, Titan Tire Corporation, and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC (collectively, "defendant-intervenors") contend that plaintiffs have not demonstrated a manifest error of law or fact to justify reconsideration and that regardless, the new margins calculated by plaintiffs would not provide meaningful relief as they still will not prevent plaintiffs' alleged irreparable harm. For the reasons discussed below, the court denies plaintiffs' motion.
A rehearing will be granted "only in limited circumstances," such as for "1) an error or irregularity, 2) a serious evidentiary flaw, 3) the discovery of new evidence which even a diligent party could not have discovered in time, or 4) an accident, unpredictable surprise or unavoidable mistake which impaired a party's ability to adequately present its case." Target Stores v. United States, 471 F.Supp.2d 1344, 1347 (CIT 2007) (citing Kerr-McGee Chem. Corp. v. United States, 14 CIT 582, 583 (1990)). The grant or denial of a motion for reconsideration is within the discretion of the court, id., and will not be granted "merely to give a losing party another chance to re-litigate the case or present arguments it previously raised," Totes-Isotoner Corp. v. United States, 580 F.Supp.2d 1371, 1374 (CIT 2008) (internal quotations and citation omitted).
This dispute arose from Commerce's calculations of an AD rate of 29.93% and a CVD rate of 14% for Starbright in its final determinations concerning OTR tires from the People's Republic of China ("PRC"). See Certain New Pneumatic Off-the-Road Tires from the People's Republic of China: Notice of Amended Final Affirmative Determination of Sales at Less Than Fair Value and Antidumping Duty Order, 73 Fed.Reg. 51,624, 51,625 (Dep't Commerce Sept. 4, 2008); Certain New Pneumatic Off-the-Road Tires from the People's Republic of China: Final Affirmative Countervailing Duty Determination and Final Negative Determination of Critical Circumstances, 73 Fed.Reg. 40,480, 40,483 (Dep't Commerce July 15, 2008). Plaintiff's sought a temporary restraining order and a preliminary injunction, alleging that imposition of the approximate 44% cash deposit requirement would cause irreparable harm to GPX.
For purposes of the preliminary injunction motion, the court assumed that, as alleged by plaintiffs, "GPX established irreparable harm attributable to any deposit rate above the 10-15% range." GPX Int'l Tire Corp., at 1291-92. Contrary to plaintiffs' assertions here, the court did not find that plaintiffs had demonstrated a likelihood of success on the merits of Commerce's AD and CVD determinations.
With respect to the merits of the AD determination, the court was "greatly concerned," given Commerce's imposition of CVD duties based on market-oriented changes in the PRC, that Commerce did not even consider market-oriented-enterprise ("MOE") treatment for Starbright. Id. at 1288-89. Plaintiffs, however, did not provide an estimate of what the margins likely would have been if Commerce had granted Starbright MOE treatment and the court could not determine whether the AD cash deposit rate likely would be reduced to a level sufficient to prevent plaintiffs' claimed irreparable harm. Id. at 1289-90.
In addressing the merits of the CVD determination, the court acknowledged that application of CVD duties in this case raised "grave questions" both in terms of statutory interpretation and fairness concerning the ability of Commerce, under 19 U.S.C. §§ 1671, 1677(5), to apply non-market economy ("NME") procedures to PRC merchandise in the AD context while at the same time applying CVD measures to the same goods. See id. at 1290. The court found, however, that even "[a]ssuming that plaintiffs have established that there is sufficient likelihood that the duty deposit rate should be approximately 30% rather than 44%, based on a reduction for eliminated CVD, ... plaintiffs cannot prevail." Id. at 1291-92 (emphasis added). Because "there has been no showing of a likelihood of success on the merits on the ITC's affirmative injury determination or Commerce's AD determination" sufficient to reduce the likely combined duty rate to close to the 10-15% level, no meaningful relief could be provided. Id.
Plaintiffs now argue that providing an estimate of what the margins likely would have been if Commerce had granted Starbright MOE treatment places them in an "impossible `Catch 22' situation,"...
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Gpx Intern. Tire Corp. v. U.S., Slip Op. 09-103.
...the underlying actions were decided. GPX Int'l Tire Corp. v. United States, 587 F.Supp.2d 1278, 1291-92 (CIT 2008), reh'g denied, 593 F.Supp.2d 1389 (CIT 2008). On February 12, 2009, the court also denied the Ministry of Commerce, People's Republic of China's motion to intervene, as good ca......