United States v. Univar USA Inc.
| Decision Date | 13 November 2018 |
| Docket Number | Slip Op. 18-157,Court No. 15-00215 |
| Citation | 355 F.Supp.3d 1225 |
| Parties | UNITED STATES, Plaintiff, v. UNIVAR USA INC., Defendant. |
| Court | U.S. Court of International Trade |
Reta E. Bezak, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for Plaintiff. With her on the brief were Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Stephen C. Tosini, Senior Trial Counsel, and William G. Kanellis, Trial Attorney.
Lucius B. Lau, White & Case LLP, of Washington, DC, argued for Defendant. With him on the brief were Gregory J. Spak, Sadie L. Gardner, and Jessica E. Lynd.
In this action, the United States of America ("Plaintiff" or the "Government") seeks to recover unpaid duties and a monetary penalty pursuant to Section 592 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1592 (2012),1 plus interest, costs, and attorney fees, stemming from 36 entries of saccharin, allegedly transshipped from the People's Republic of China ("China") through the Republic of China ("Taiwan"), which Univar entered into the commerce of the United States between 2007 and 2012. See generally Compl., ECF. No. 2. Before the court is Defendant, Univar USA Inc.'s ("Univar" or "Defendant") motion for summary judgment. Confidential Univar's Mot. For Summ. J., ECF No. 143, and Confidential Univar USA Inc.'s Mem. of P. & A. in Supp. of its Mot. for Summ. J. ("Def.'s Mem."), ECF No. 143-2. Defendant seeks summary judgment with respect to all entries. See Def.'s Mem. at 1-2. Alternatively, Defendant seeks dismissal of Plaintiff's penalty claims, asserting that U.S. Customs and Border Protection ("Customs" or "CBP") failed to comply with the statutory obligations of Section 592(b)(2), thereby depriving this court of subject matter jurisdiction. Def.'s Mem. at 42-44; Confidential Univar USA Inc.'s Reply in Supp. of its Mot. for Summ. J. ("Def.'s Reply") at 19-21, ECF No. 161. The motion is fully briefed,2 and the court held oral argument on May 23, 2018. See Docket Entry, ECF No. 192; Oral Arg. Tr., ECF No. 196. For the reasons discussed below, Defendant's motion for summary judgment is denied.
Pursuant to United States Court of International Trade ("USCIT") Rule 56.3(a), a motion for summary judgment must include a separate document that contains a "short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." The movant must follow each statement with citation to evidence that would be admissible. USCIT Rule 56.3(c). Citations may be to "particular parts of materials in the record," such as "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." USCIT Rule 56(c)(1)(A). Pursuant to USCIT Rule 56(c)(2), "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence."
In compliance with USCIT Rule 56.3, the parties have filed their proposed statements of facts and supported those statements with citations to evidence. See generally Confidential Univar's Rule 56.3 Statement in Supp. of its Mot. For Summ. J. ("DSOF"), ECF No. 143-3; Confidential Pl.'s Rule 56.3 Counterstatement of Fact ("PCSOF"), ECF No. 154-1; Confidential Univar USA Inc.'s Rebuttal to Pl.'s Rule 56.3 Counterstatement ("Def.'s Resp. to PCSOF"), ECF No. 161-1; Confidential Univar USA Inc.'s Suppl. Rule 56.3 Statement ( ), ECF No. 184-1; Confidential Pl.'s Conditional Suppl. Rule 56.3 Counterstatement of Fact ( ), ECF No. 188-1.3 Plaintiff has cited numerous exhibits to support its statements of fact. See generally PCSOF.4 Univar objects to the admission of nearly all of Plaintiff's exhibits on the grounds of hearsay or relevance. The disputed evidence can be grouped in four general categories.
The first category of evidence to which Univar objects includes emails sent by Univar employees to Univar agents or third parties. For convenience, the exhibits, the relevant corresponding source where Univar makes the objection, and a brief description of the exhibit are set forth in the following table:
Table 1
Item Plaintiff's Exhibit Brief Description Univar's Objection
No
1 Pl.'s Attach. 1 at Univar_011207, Email from Hungyao Hearsay. Def.'s
ECF No. 154-3 at p. 4 Chin ("Mr. Resp. to PCSOF
Chin")5 to ¶ 206
Thomas Biggs
("Mr. Biggs")6
2 Pl.'s Attach. 1 at Univar_014737, Email from Mr. Hearsay. Def.'s
ECF No. 154-3 at p. 9 Biggs to third Resp. to
party PCSOF ¶ 246
3 Pl.'s Attach. 1 at Univar_066462, Email from Mr. Hearsay. Def.'s
ECF No. 154-3 at p. 13 Biggs to Mr. Chin Resp. to PCSOF
¶ 205
4 Pl.'s Attach. 2 (Dep. Ex. 162), Email from a Hearsay. Def.'s
ECF No. 154-4 at p. 367 Univar General Resp. to PCSOF
Manager to Mr. ¶ 227
Biggs and others
5 Pl.'s Attach. 2 (Dep. Ex. 163), Email from a Hearsay. Def.'s
ECF No. 154-4 at p. 371 Univar General Resp. to PCSOF
Manager to Mr. ¶¶ 225-226, 260
Biggs
6 Pl.'s Attach. 2 (Dep. Ex. 288), Emails from Mr. Hearsay. Def.'s
ECF No. 154-4 at pp. 144-147 Biggs and Mr. Resp. to PCSOF
Chin ¶¶ 191-193
7 Pl.'s Suppl. A7 (Dep. Ex. 215), Email from a Hearsay. Def.'s
ECF No. 191 at p. 9 Univar employee Resp. to PCSOF
to third party ¶ 198
8 Pl.'s Attach. 2 (Dep. Ex. 311), Email from Mr. Hearsay. Def.'s
ECF No. 154-4 at p. 268 Biggs to Mr. Chin Resp. to PCSOF
¶ 210
9 Pl.'s Attach. 2 (Dep. Ex. 316), Email from Mr. Hearsay. Def.'s
ECF No. 154-4 at p. 285 Biggs to third Resp. to PCSOF
party ¶¶ 200, 244
10 Pl.'s Attach. 2 (Dep. Ex. 312), Email from Mr. Hearsay. Def.'s
ECF No. 154-4 at p. 269 Chin to Mr. Biggs Resp. to PCSOF
¶ 207
11 Pl.'s Attach. 2 (Dep. Ex. 314), Email from a Hearsay. Def.'s
ECF No. 154-4 at pp. 275-282 Univar employee Resp. to PCSOF
attaching an ¶¶ 203, 213, 237
Application for
Kosher
Certification
12 Pl.'s Attach. 2 (Dep. Ex. 318), Email from Mr. Hearsay. Def.'s
ECF No. 154-4 at p. 292 Biggs to third Resp. to PCSOF
party ¶ 212
13 Pl.'s Attach. 2 (Dep. Ex. 323), Email from a Hearsay. Def.'s
ECF No. 154-4 at p. 337 Univar employee Resp. to PCSOF
to at least one ¶ 217
other Univar
employee
14 Pl.'s Attach. 2 (Dep. Ex. 327), Email thread Hearsay. Def.'s
ECF No. 154-4 at p. 345 between Univar Resp. to PCSOF
employees ¶ 224
15 Pl.'s Attach. 2 (Dep. Ex. 328), Univar internal Hearsay. Def.'s
ECF No. 154-4 at pp. 350-351 email Resp. to PCSOF
¶ 242
16 Pl.'s Attach. 2 (Dep. Ex. 329), Email from a Hearsay. Def.'s
ECF No. 154-4 at p. 353 Univar General Resp. to PCSOF
Manager to at ¶ 228
least one other
Univar employee
Editor's Note: The preceding image contains the reference for footnotes5 ,6 The second category of evidence includes emails or other written communications sent to Univar employees or agents by third parties:
Table 2
Item Exhibit Brief Description Objection
No
1 Pl.'s Attach. 1 at UNIVAR_USCIT- Email from Hearsay. Def.'s
0531, ECF No. 154-3 at pp. 87-88 William Huang to Resp. to PCSOF
Mr. Chin ¶ 186
2 Pl.'s Attach. 1 at Univar
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