Jem D Int'l (Mich.) Inc. v. United States

Citation470 F.Supp.3d 1374
Decision Date11 September 2020
Docket NumberCourt No. 19-00127,Slip Op. 20-133
Parties JEM D INTERNATIONAL (MICHIGAN) INC. USA, Jem D Marketing (Virginia) Inc., Red Sun Farms Holdings USA LLC, and Red Sun Farms Virginia LLC, Plaintiffs, v. UNITED STATES, Defendant, and The Florida Tomato Exchange, Defendant-Intervenor.
CourtU.S. Court of International Trade

Valerie Ellis and Kimberly Reynolds, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington, D.C., for Plaintiffs Jem D International (Michigan) Inc. USA, Jem D Marketing (Virginia) Inc., Red Sun Farms Holdings USA LLC, and Red Sun Farms Virginia LLC.

Elizabeth Anne Speck, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for Defendant United States. With her on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of counsel on the brief was Emma T. Hunter, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, Washington, D.C.

Jonathan M. Zielinski, Robert C. Cassidy, Jr., Charles S. Levy, James R. Cannon, Jr., Mary Jane Alves, and James E. Ransdell, Cassidy Levy Kent (USA) LLP, of Washington, D.C., for Defendant-Intervenor The Florida Tomato Exchange.

OPINION AND ORDER

Choe-Groves, Judge:

Plaintiffs Jem D International (Michigan) Inc. USA, Jem D Marketing (Virginia) Inc., Red Sun Farms Holdings USA LLC, and Red Sun Farms Virginia LLC ("Plaintiffs")1 brought suit under this Court's residual jurisdiction, 28 U.S.C. § 1581(i), challenging Commerce's decision to withdraw from a previously entered suspension agreement, continue the underlying antidumping investigation, and commence negotiations upon signing a new agreement suspending Commerce's antidumping duty investigation of fresh tomatoes from Mexico. Suppl. Compl. ¶ 1, ECF No. 52 ("Compl."); Fresh Tomatoes from Mexico, 84 Fed. Reg. 20,858 (Dep't Commerce May 13, 2019) (termination of suspension agreement, rescission of administrative review, and continuation of the antidumping duty investigation) ("May 2019 Withdrawal Notice"). Plaintiffs request that the court "hold unlawful and set aside Commerce's termination of the 2013 Suspension Agreement" and also "hold unlawful Commerce's resumption of the antidumping duty investigation" based on using May 7, 2019 as the date of the preliminary determination. Compl. ¶ 4.2

Before the court is Defendant United States' ("Defendant") motion to dismiss the Complaint pursuant to USCIT Rule 12(b)(1) for lack of subject matter jurisdiction and pursuant to USCIT Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Def.'s Mot. to Dismiss, ECF No. 53 ("Def. Br."). Plaintiffs opposed. Pls.' Resp. to Def.'s Mot. to Dismiss, ECF No. 57 ("Opp'n Br."). Defendant replied. Def.'s Reply in Supp. of its Mot. to Dismiss, ECF No. 58 ("Def. Reply").3 For the reasons that follow, Defendant's motion to dismiss is granted.4

I. BACKGROUND5
A. History of the Fresh Tomatoes from Mexico Antidumping Duty Proceeding

Commerce's investigation of fresh tomatoes from Mexico has a long procedural history. In April 1996, Commerce initiated an antidumping duty investigation to determine whether imports of fresh tomatoes from Mexico were being, or likely to be, sold in the United States at less than fair value. Fresh Tomatoes from Mexico, 61 Fed. Reg. 18,377 (Dep't Commerce Apr. 25, 1996) (initiation of antidumping duty investigation). After a preliminary determination from the International Trade Commission ("ITC") in October 1996, Commerce made a preliminary determination that imports of fresh tomatoes from Mexico were being sold in the United States at less than fair value. Compl. ¶ 8; Fresh Tomatoes from Mexico, 61 Fed. Reg. 56,608 (Dep't Commerce Nov. 1, 1996) (preliminary determination) (announcing the suspension of liquidation and directing U.S. Customs and Border Protection ("CBP") to require a cash deposit or posting of a bond) ("1996 Preliminary Determination"). Commerce also announced that, under U.S.C. § 1673d(a)(2)(A), based upon receiving requests from five of the six mandatory respondents, Commerce postponed making its "final determination until the 135th day after the date of publication of the affirmative preliminary determination in the Federal Register[,]" which was March 16, 1997. 1996 Preliminary Determination, 61 Fed. Reg. at 56,609.

That same day, Commerce announced that Commerce and certain producers and exporters who accounted for substantially all of the imports of fresh tomatoes from Mexico into signed an agreement to suspend the antidumping duty investigation on fresh tomatoes from Mexico (the 1996 Suspension Agreement). Compl. ¶ 9; Fresh Tomatoes from Mexico, 61 Fed. Reg. 56,618 (Dep't Commerce Nov. 1, 1996) (suspension of antidumping investigation).6

Over the next 23 years, Commerce and the signatories entered into a series of suspension agreements after the signatory Mexican producers and exporters of fresh tomatoes gave notice that they wanted to withdraw from the operative suspension agreement. The Mexican signatories announced their intent to withdraw from the relevant suspension agreement three times: in 2002, 2007, and 2013. Compl. ¶ 10.7

Each time the Mexican signatories announced their withdrawal from the effective suspension agreement, Commerce terminated the suspension agreement, resumed the antidumping investigation, suspended liquidation, and instructed CBP to require a cash deposit or bond at the rate set forth in the 1996 Preliminary Determination. See Compl. ¶ 11; Fresh Tomatoes from Mexico, 67 Fed. Reg. at 50,860 ; Fresh Tomatoes from Mexico, 73 Fed. Reg. at 2889 ; Fresh Tomatoes from Mexico, 78 Fed. Reg. at 14,772. Yet, each time the Mexican signatories withdrew, the parties negotiated and entered into a new suspension agreement, and in 2002, 2008, and 2013, new suspension agreements went into effect. Compl. ¶ 12.8 In those instances, Commerce directed CBP to refund cash deposits collected during the resumption period of the antidumping duty investigation and to release any bonds that were posted. See Def. Br., Exs. 1–3 (CBP Messages). And in each instance, Commerce resumed the antidumping duty investigation in 2002, 2008, and 2013 "as if" Commerce had published the 1996 Preliminary Determination on the effective date of termination. Fresh Tomatoes from Mexico, 67 Fed. Reg. at 50,859 –60; Fresh Tomatoes from Mexico, 73 Fed. Reg. at 2889 ; Fresh Tomatoes from Mexico, 78 Fed. Reg. at 14,772.9

B. Commerce Withdraws from the 2013 Suspension Agreement, Continues the Underlying Investigation, and Issues the Final Determination

Section VI.B of the 2013 Suspension Agreement allowed either party (Commerce or the Mexican signatories) to withdraw from that agreement upon giving 90 days' written notice. Commerce gave the signatory Mexican tomato growers and exporters notice of intent to withdraw from the 2013 Suspension Agreement on February 6, 2019. Compl. ¶¶ 28–29; May 2019 Withdrawal Notice, 84 Fed. Reg. at 20,860 (explaining the history of the proceedings); Fresh Tomatoes from Mexico, 84 Fed. Reg. 7872, 7874 (Dep't Commerce Mar. 5, 2019) (notice of intent to terminate suspension agreement, rescind the sunset and administrative reviews, and resume the antidumping duty investigation). Commerce then withdrew from the 2013 Suspension Agreement, effective May 7, 2019, and continued the underlying antidumping investigation. Compl. ¶¶ 31–32; May 2019 Withdrawal Notice, 84 Fed. Reg. at 20,858.

On September 24, 2019, Commerce published a notice in the Federal Register, with an effective date of September 19, 2019, announcing that "Commerce and representatives of the signatory producers/exporters accounting for substantially all imports of fresh tomatoes from Mexico signed" an agreement to suspend the underlying antidumping duty investigation. 2019 Suspension Agreement, 84 Fed. Reg. at 49,989 ; Compl. ¶ 39. One of the Mexican signatories to the 2019 Suspension Agreement is the Asociación Mexicana de Horticultura Protegida, A.C. ("AMHPAC"). 2019 Suspension Agreement, 84 Fed. Reg. at 49,994. AMHPAC and the other associations of individual Mexican fresh tomato growers who signed the 2019 Suspension Agreement "certif[ied] that the members of their organization agree to abide by all terms of the Agreement." Id. Three members of Plaintiff Red Sun Farms consortium of companies, Naturbell SPR DE RL, San Miguel Red Sun Farms SPR DE RL DE CV, and Agricola El Rosal DE, are members of AMHPAC. See Confederacion de Asociaciones Agricolas del Estado de Sinaloa, A.C. v. United States, Court No. 19-00203 ("CAADES"), Compl. n.1, ECF No. 14; id., Ex. 1, ECF No. 14-1 (identifying the individual members and associations as signatories to the 2019 Suspension Agreement).10 No party challenged Commerce's decision to suspend the investigation. The ITC also announced the suspension of its antidumping investigation as of September 24, 2019. Fresh Tomatoes from Mexico, 84 Fed. Reg. 54,639 (Int'l Trade Comm'n Oct. 10, 2019) (suspension of anti-dumping investigation).

After signing the 2019 Suspension Agreement, Commerce received requests under 19 U.S.C. § 1673c(g) to continue the underlying antidumping duty investigation. Fresh Tomatoes from Mexico, 84 Fed. Reg. at 57,401. Commerce published its final determination in the continued investigation, finding that fresh tomatoes from Mexico were being, or likely to be, sold in the United States at less than fair value on October 25, 2019. Fresh Tomatoes from Mexico, 84 Fed. Reg. at 57,401. The ITC issued an affirmative injury determination on December 12, 2019. Compl. ¶ 40; Fresh Tomatoes from Mexico, 84 Fed. Reg. 67,958 (Int'l Trade Comm'n Dec. 12, 2019) (notice of material injury determination).

C. The Current Litigation

The court previously granted Plaintiffs leave to file a supplemental complaint but deferred ruling on whether Plaintiffs' claims were moot. Orde...

To continue reading

Request your trial
2 cases
  • VoestAlpine USA Corp. v. United States
    • United States
    • U.S. Court of International Trade
    • August 26, 2021
    ...v. United States , 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) ); see also Jem D Int'l (Michigan) Inc. USA v. United States , 44 CIT ––––, ––––, 470 F. Supp. 3d 1374, 1380 (2020) (mootness precludes the court's consideration of a claim "when ‘events have so transpired that the [co......
  • Voestalpine U.S. Corp. v. United States
    • United States
    • U.S. Court of International Trade
    • August 26, 2021
    ...of Scientology v. United States, 506 U.S. 9, 12 (1992)); see also Jem D Int'l (Michigan) Inc. USA v. United States, 44 CIT___, ___, 470 F.Supp.3d 1374, 1380 (2020) (mootness precludes the court's consideration of a claim "when 'events have so transpired that the [court's] decision will . . ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT