Intrepid v. Pollock

• Citation: 907 F.2d 1125
• Decision Date: 29 June 1990
• Docket Number: No. 89-1468,89-1468
• Parties: INTREPID, Plaintiff-Appellant, v. Mamie E. POLLOCK, District Director of Customs, and the United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1125

907 F.2d 1125

12 ITRD 1401

INTREPID, Plaintiff-Appellant, v. Mamie E. POLLOCK, District Director of Customs, and the

United States of America, Defendants-Appellees.

No. 89-1468.

United States Court of Appeals, Federal Circuit.

June 29, 1990.

Dickson R. Loos, Holland & Knight, of Washington, D.C., argued for plaintiff-appellant. With him on the brief was William G. Bell, Holland & Knight, of Miami, Fla.

Velta A. Melnbrencis, Asst. Director, Commercial Litigation Branch, Dept. of Justice, of Washington, D.C., argued for defendants-appellees. With her on the brief were Stuart E. Schiffer, Acting Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief were Wendell L. Willkie, II, General Counsel, Stephen J. Powell, Chief Counsel for Import Admin. and Tanya J. Potter, Attorney-Adviser, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, D.C., of counsel.

Before NIES, Chief Judge, SMITH, Senior Circuit Judge, and NEWMAN, Circuit Judge.

NIES, Chief Judge.

Intrepid appeals from the order of the United States Court of International Trade in Intrepid v. Pollock, 712 F.Supp. 212 (Ct. Int'l Trade 1989) (Tsoucalas, J.), denying its motions under 15(a) and (d) of the Rules of the Court of International Trade for leave to supplement and amend its complaint, and dismissing its action sua sponte. We reverse the rulings on the motions, vacate the judgment, and remand for proceedings on the merits.

I

Intrepid imported certain welded steel pipes (BS-1387) from Thailand into Puerto Rico between July 1987 and February 1988. Although not originally required on the July shipment, the International Trade Administration of the Department of Commerce (ITA) subsequently directed the United States Customs Service to suspend liquidation and to obtain cash deposits for estimated duties on such imports, pursuant to certain outstanding ITA antidumping and countervailing duty orders. ¹ In February 1988, Intrepid made a request to the ITA for exclusion of its steel pipes from the scope of the antidumping duty order.

Before a ruling was made on its request to ITA, Intrepid commenced suit in the Court of International Trade on April 12, 1988, against the District Director of Customs and the United States asserting that the BS-1387 pipe was not within the scope of the outstanding orders; that the original orders did not adequately describe the class of investigated merchandise; that it had costed the merchandise on the basis of entry without duties which had not been required in July; and that it would be irreparably harmed if it had to deposit cash pending liquidation. Asserting jurisdiction under 28 U.S.C. Sec. 1581(i) (1988), it sought to enjoin Customs from collecting cash deposits, as opposed to requiring a bond, for estimated duties pertaining to the imported steel pipes and such other relief as was just. Its motion for a temporary restraining order and a preliminary injunction was denied on April 15, 1988.

In early January 1989, the court requested a status report from the parties. The government responded that in the interim Customs did permit Intrepid to post a bond, rather than to deposit cash, covering the estimated duties and suggested that Intrepid's complaint should be dismissed because it had obtained all the relief it had sought in its complaint.

Meanwhile, on January 19, 1989, in response to Intrepid's pending request, the ITA ruled that the steel pipes Intrepid imported were within the scope of the outstanding antidumping duty order. A facsimile copy of that determination was received by Intrepid on January 23, 1989, whereupon, on February 2, 1989, within the time to appeal that determination, Intrepid moved to file an amended complaint (February complaint). The February complaint included allegations specifically directed to ITA's scope determination and sought to prohibit "[d]efendants from liquidating the subject entries pending appeal of the ITA determination." The court denied a motion for injunctive relief pendente lite and reserved ruling on the motion to amend.

Also in response to ITA's scope determination, Intrepid attempted to file an "administrative appeal" to the Secretary of Commerce, and was advised on March 10, 1989, that no such procedure existed. After offering amendments to the still-pending motion to file the February complaint, on May 1, 1989, Intrepid sought to substitute a second amended complaint (May complaint) as a replacement for all earlier pleadings. This pleading was the first to include all technical allegations against the ITA's scope determination including specifically naming ITA in the caption and alleging jurisdiction under 28 U.S.C. Sec. 1581(c) (1988). The government opposed, contending that Intrepid could not amend its originally filed complaint to obtain review of ITA's scope determination but had to have filed a separate complaint within 30 days of that determination.

The trial court agreed with the government and dismissed the pending action sua sponte. As bases for its dismissal, the court stated that: (a) Intrepid's complaint as filed had been mooted by Customs' action in allowing Intrepid to post a bond; (b) Intrepid's complaint, filed nine months before notification of ITA's scope determination, could not cover ITA's scope determination because it was not filed within the time period specified in section 19 U.S.C. Sec. 1516a(a)(2) (1988), i.e., within 30 days after ITA's determination; (c) the February complaint was deficient; and (d) the May complaint which was correct in all respects was too late to meet the statutory time period. The court deemed Intrepid responsible for the harsh consequence of dismissal because it chose not to follow the statutory scheme of filing a separate complaint. In its discussion, the court found it significant that the jurisdictional allegation of the original complaint was 28 U.S.C. Sec. 1581(i) whereas a complaint for review of a scope determination fell under 28 U.S.C. Sec. 1581(c).

II

Rule 15 of the Court of International Trade which parallels that of the Federal Rules of Civil Procedure, provides in pertinent part:

Rule 15. Amended and Supplemental Pleadings (a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been noticed for trial, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires....

. . . . .

(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, that party (1) has received such notice of the institution of the action that [he] the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. The delivery or mailing of the summons and complaint to the Attorney-in-Charge, International Trade Field Office, Commercial Litigation Branch, Department of Justice, or an agency or officer who would have been a proper defendant if named, satisfies the requirement of clauses (1) and (2) hereof with respect to the United States or any agency or officer thereof to be brought into the action as a defendant.

(d) Supplemental Pleadings. Upon motion of a party, the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleadings setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statements of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.

The Supreme Court, in an early ruling on the Federal Rules of Civil Procedure, stated that: "The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957) (involving the sufficiency of pleadings to give notice). In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Court re-emphasized its view in the context of Rule 15, wherein it held that an appellate court erred in affirming a district court's denial of a motion to vacate a judgment of dismissal for purposes of supplementing and amending a complaint to state an alternative theory for recovery. In so doing it stated that the "mandate" of Rule 15(a), which declares that leave to amend " 'shall be freely given when justice so requires,' " "is to be heeded." 371 U.S. at 182, 83 S.Ct. at 230. The Court has consistently adhered to that view although it has repeatedly reminded that a trial court is required to take into account any prejudice to the opposing party which would result from allowing the amendment of the pleadings. See, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971) (substantial prejudice found); United States v. Hougham, 364 U.S. 310, 316-17, 81 S.Ct. 13, 17-18, 5...